NEERU @ PARVINDER KAUR vs SHASHI GUPTA (Dr.)

-MRS. Jasbir Kapoor remained as a Member with District Consumer Disputes Redressal Forum, Patiala (in short ''District Forum'') and she along with the other Member had passed the impugned order dated 28.9.2001 by which the complaint was dismissed. Against this order, the appeal has been filed by the appellant-complainant (to be referred as ''complainant''). Therefore, she abstained from the hearing of this case.

THE version of the complainant was that Dr. Shashi Gupta, respondent No. 1 (to be referred as ''respondent No. 1'') is a Gynaecologist and Obstetrician and she runs the hospital in the name of Rajan Nursing and Maternity Home, respondent No. 2 (to be referred as ''respondent No. 2''). In the month of April 2000, the complainant realised that she has become pregnant. Since she had two children, she, in consultation with her husband, thought of not to have a third child. She went to respondent No. 1 on 28.4.2000 who examined her medically and told her that the pregnancy was one month old and that was the proper time to get the pregnancy terminated by tubectomy operation. She was given medicines and was asked to revisit the hospital. THE complainant along with her husband re-visited the hospital on 3.5.2000. She was examined by respondent No. 1. THE complainant and her husband were advised to purchase some medicines so that the tubectomy operation can be performed on 3.5.2000. THE complainant purchased the medicines. Respondent No. 1 assured the complainant and her husband that the operation was of minor nature which would be performed by administering local anaesthesia and on the asking of respondent No. l, the husband of complainant had signed certain papers. The complainant was taken in the operation theatre. She was administered the injection of anaesthesia. She was kept in the operation theatre for 1 hours and she remained unconscious. She regained consciousness after two hours when she was shifted from operation theatre. Thereafter, the husband of the complainant noticed a big cut under the lower portion of the abdomen of the complainant. There were 8 stitches. Although the tubectomy operation was to be performed by Laparoscopy, however, the complainant and her husband were informed by respondent No. 1 that an ovarian cyst has been removed by performing Tubectomy Operation. This created suspicion in the mind of the complainant as there was no such complication as per the X-Ray Report. The husband of the complainant demanded the ovarian cyst which was removed from the body of the complainant but respondent No. 1 became nervous. The complainant and her husband found some foul play in the conduct of respondent No. 1. The husband of the complainant consulted some other doctors and the belief of the husband of the complainant became firm that the major operation has been performed by respondent No. 1 for fleecing money from the complainant.

When the complainant was discharged from the hospital on 5.5.2000, the respondents were again requested to show the alleged cyst which was removed from the body of the complainant but respondent No. 1 failed to do so. Thus, a letter was sent to respondent No. 1 through courier on the same day. The respondents had charged Rs. 6,500 for the operation vide cheque dated 5.5.2000. The inflated and exaggerated bill was given to the complainant on the false pretext that the operation was performed for the removal of ovarian cyst. On 17.5.2000, the complainant underwent Scan Test which confirmed that her right ovary was removed from the body without any reason. It was also alleged that respondents have removed the right ovary of the complainant so as to justify the bill and fulfil their lust for money which has caused terrible loss, pain and suffering to the complainant. Hence, compensation of Rs. 5 lacs was claimed by filing this complaint towards loss, compensation for mental/physical pain, harassment, costs etc.

THE respondents filed the reply and contested the case. It was admitted that respondent No. 1 is a qualified Gynaecologist and she has 20 years experience for running the Nursing Home. THE husband of respondent No. l, Dr. Raj Kumar Gupta, was a qualified doctor and a specialist in Medicine. It was admitted that complainant approached respondent No. 1 on 28.4.2000 but no X-Ray or ultrasound was performed on her body. Respondent No. l never told the complainant that it would be a minor operation for removing the pregnancy or if it would be performed by administering local anaesthesia or if the signatures of the husband of the complainant were obtained on some blank forms. THE allegations made by the complainant were denied. Since no x-Ray or ultrasound was performed before operating the complainant, therefore, the complications of ovarian cyst were not known before starting the operation. At the time of operation, a regular Anesthesia Specialist was present who administered the anaesthesia. It was a major operation. Respondent No. 1 faced difficulty in locating the tube on the right side for which the incision had to be increased and when respondent No. 1 finally located the same, it was found to be badly fixed with ovary. It was cystic and appeared to be diseased. It happens because of old time infections which are quite common in ladies and occurs after repeated deliveries or abortions. When respondent No. 1 found the tube attached with ovary cyst, she decided for the removal of the diseased ovary cyst but before doing so, she explained this to the husband of the complainant who gave the consent for the operation and for the removal of ovarian cyst. The husband of the complainant also signed in token of giving consent for removing the diseased ovary as the complainant was under sedation. Respondent No. 1 removed the diseased ovary. The complainant was also told about it when she regained conscious. Medically it was in her interest.

THE cystic ovary was sent in modern computerised laboratory for its histopathology test and it was disclosed to the complainant and to her husband. On the medical papers of the complainant, it was written in the column of Diagnosis ''Tubectomy and Ovary operation''. THE complainant was discharged on 5.5.2000 against the medical advice. Rs. 200 were added in the bill for histopathology test. Respondent No. 1 has done nothing with mala fide intention. THE complainant was advised to re-visit the hospital on 10.5.2000 for removal of stitches and for collection of laboratory report of removed part of her body but she never came. THE laboratory report/histopathology report dated 10.5.2000 was received by respondent No. 1 which reads as under: "Folliculars cyst with chronic, non-specific inflammatory pathology." It was further pleaded that the complainant has not only filed the complaint in the District Forum but she also got registered a false criminal case against the respondents. A Medical Board was constituted in the said case who reported as under: "(i) It was necessary to remove the cystic ovary. (ii) If the right cystic ovary was not removed, the disease could have progressed and affected the health of Mrs. Neeru. (iii) Removal of one diseased ovary does not affect the reproductive or physical activity."

The bill was charged only for the termination of pregnancy and for tubectomy. Nothing excess was charged for the operation of removal of cystic ovary. Dismissal of complaint was prayed.

THE learned President of the District Forum vide judgment dated 28.9.2001 accepted the complaint and awarded the compensation amounting to Rs. 50,000 to the complainant besides the amount of costs and compensation. However, the Hon''ble Members disagreed with the President and vide separate detailed judgment dated 28.9.2001, dismissed the complaint by majority judgment.

HENCE, the present appeal by the complainant. Record has been perused. Submissions have been considered.

There is no dispute that the complainant had come to the respondents on 28.4.2000 to get the pregnancy aborted. As per the version of the complainant, she was medically examined by respondent No. l on 28.4.2000 and respondent No. 1 had not found any other complication or medical problem for the termination of pregnancy and for tubectomy operation by way of laparoscopy and had advised her to come to the hospital on 3.5.2000 for this purpose.

THIS version of the complainant does not sound to reason as she has not pleaded or proved that she was subjected to X-Ray examination or to ultrasound test on 28.4.2000. Merely by touching the body of the complainant on 28.4.2000, respondent No. 1 obviously could not have diagnosed or assessed as to what was the position inside the body or any knowledge about the existence of cyst or condition of the right ovary or of the tube. Therefore, the version of the complainant that she was told by respondent No. 1 on 28.4.2000 that there was no complication inside does not appear to be plausible. The complainant has alleged that a number of Forms were given to the husband of the complainant for signatures on the plea that it was a routine formality. The husband of the complainant, under anxiety at that time, signed those forms/papers without going through the same.

THIS version of the complainant also appears to be un-believable. When the complainant herself was available, she was an adult and she was conscious, then the respondents would have got signed the papers/forms from her and not from her husband unless she had asked the respondents to get those papers/documents signed from her husband. Even the husband would have refused to sign the papers by taking the plea that the same be got signed from his wife, namely the complainant. There was no question of anxiety to the husband of the complainant prior to the operation on 3.5.2000. Therefore, this version of the complainant appears to be unbelievable. On the other hand, the version of the respondents appears to be more plausible and believable. According to the respondents, the complainant was taken to operation theatre and when respondent No. 1 found that the tube was badly fixed with the ovary which was cystic and diseased and the ovary being cystic was to be removed in the interest of the patient and since the patient was herself under sedation, therefore, she had thought proper to get the necessary consent from the husband of the complainant. Therefore, she came out from the operation theatre and got the necessary papers signed from the husband of the complainant after explaining the situation to him. Since the removal of ovary cyst by operation has been consented to by the husband of the complainant, she cannot turn around and say that this has been done by respondent No. l on her own or for ulterior motive. Therefore, this circumstance also falsifies the version of the complainant.

THE next version of the complainant that after her discharge from the hospital on 5.5.2000, she had requested respondent No. l to hand over the cystic ovary which was taken out of her body but respondent No. 1 had become nervous.

THIS contention is also without force. Respondent No. 1 has given a proper explanation that cystic ovary was sent to modern computerised laboratory for its histopathology test and it was explained to the complainant. After all, respondent No. 1 was an expert Gynaecologist. When a major surgery was performed by her on the person of the complainant, it was the duty of respondent No. l to get tested the material taken out of the body of the complainant to assess its nature and its effect and to inform her about its consequences or possible effect on her body. Respondent No. l has stated that she had explained to the complainant that the Test Report would be available on 10.5.2000 and the complainant was asked to come in the hospital on 10.5.2000 to see the report herself but the complainant had failed to come. The report dated 10.5.2000 received by respondent No. l from the laboratory after histopathology test reads as under: "Folliculars cyst with chronic, non-specific inflammatory pathology." This report clearly not only testified the stand of respondent No. 1 that she had sent the cystic ovary to the laboratory for test but it also reveals that the right ovary was cystic and diseased. The version of the complainant that respondent No. l had declined to give this cystic ovary to her with mala fide intention falls to the ground.

Another allegation of the complainant was that the major surgery was performed by respondent No. 1 in order to inflate her bill and it was not required at all.

THIS version is falsified by the fact stated by the complainant herself. She has herself stated in the complaint that respondent No. 1 had charged only a sum of Rs. 6,500 from her on 5.5.2000. THIS was the amount chargeable by the respondents from the complainant for the removal of pregnancy. Whether the pregnancy was removed by Laparoscopy or by major operation has not made much difference to the complainant as the medical charges remain the same. It is not alleged by the complainant if respondent No. 1 was to charge less expenses if the operation was to be done by laparoscopy. Rather by performing major surgery, respondent No. 1 has spent more time on the complainant without making any monetary gain. It is, therefore, not made out if respondent No. 1 had any lust for money or if the operation was performed for that purpose. Respondent No. 1 has led evidence to believe that since the ovary in the body of the complainant was cystic and diseased, therefore, taking it out was the only course available to respondent No. 1 in the interest of her patient. The version of respondent No. 1 is supported by the opinion of Medical Board which was constituted by the Civil Surgeon. The Medical Board has reported as under: "(i) It was necessary to remove the cystic ovary. (ii) If the right cystic ovary was not removed, the disease could have progressed and affected the health of Mrs. Neeru. (iii) Removal of one diseased ovary does not affect the reproductive or physical activity."

EVEN as per the report of the Medical Board, the removal of the cystic ovary of the complainant was necessary in the interest of complainant herself. The complainant failed to prove if respondents have committed negligence in rendering medical services to her. We agree with the majority judgment passed by the learned District Forum and uphold the same. We find no merit in the appeal and the same is dismissed.

THE arguments in this case were heard on 3.12.2007 and the judgment was reserved. Now, it be communicated to the parties. Appeal dismissed.