P.N.BHASKARAN vs MOLLY ROBINSON

APPEAL 601/98 is by the first opposite party and APPEAL 604/98 is by the second opposite party in O.P. No. 65/95 on the file of the Consumer Disputes Redressal Forum, Kollam.

THE complainant went to the hospital of the first opposite party with the complaint of cold and fever. On 9.9.1994, after giving certain medicines, she was directed to report on 13.9.1994. On 13.9.1994 the complainant was subjected to pregnancy test, the result was positive, so she was referred to the Gynaecologist, the second opposite party. P.W. 2 conducted the scan. Ext. A2 scan report confirmed pregnancy, it showed, she was carrying single live foetus. THE complainant insisted for MTP (Medical Termination of Pregnancy) and MTP was performed on 15.9.1994 by the second opposite party. But no product was obtained. She was treated in the hospital till 19.9.1994. She had certain complaints, according to her, that was not properly attended. She got herself discharged and was admitted in the Nair''s Hospital on 21.9.1994 where P.W. 3 examined her and found that she was carrying foetus and on 22.9.1994 MTP was conducted and the product was taken out by suction evacuation; she was discharged on 24.9.1994. THE complainant alleged, that the afore sequence of events would show negligence on the part of opposite parties which resulted in her undergoing the second MTP at the Nairs Hospital which subjected her to pain and agony, apart from herself incurring expense towards medicine and hospital charges. THErefore she wanted redressal by way of compensation. Though first and second opposite parties filed separate versions their defence is similar. Their contentions can be summarised as follows : The first opposite party did not treat the complainant, himself is only the Director and Proprietor of the hospital and that she was attended by Dr. Reghunathan Potty. As the complainant was having complaint of vomiting and abdominal pain, she was referred to the Gynaecology department, where the second opposite party, the Gynaecologist as wanted to rule out an extra urtine pregnancy directed scan and report. The result confirmed that she was carrying live foetus. She wanted MTP to be conducted, upon which the second opposite party explained the procedure and the risk involved as she had a scar. She insisted for MTP which was performed, but no product could be obtained and therefore she was advised to have D&C again because there was possibility of continuing pregnancy. As M.T.P. was conducted at an early stage of pregnancy there was every chance of missing the product. Therefore she was continued in the hospital from 15.9.1994 for observation. But she got herself discharged on 19.9.1994. Due care and caution was taken in conducting the MTP; they denied the allegation of negligence. They wanted dismissal of the complaint.

Before the District Forum, the complainant gave evidence as P.W. 1, P.W. 2 and P.W. 3 were also examined on her side. She produced Exts. A1 to A11. P.W. 2 conducted the scan and issued Ext. A2 scan report. P.W. 3 is the Gynaecologist attached to the Nairs Hospital who conducted the second surgery. He issued Ext. A10. The second opposite party was examined as R.W. 1 and an expert was examined as R.W. 2. On behalf of the opposite parties Exts. R1 to R3 were produced.

ON a consideration of the said material the District Forum made a direction to the opposite parties to pay Rs. 15,000/- as compensation and also to pay Rs. 500/- as costs within one month. The said direction is under challenge in this appeal. Learned Counsel for the appellants maintained, that the very approach made by the District Forum is not correct. Since the pregnancy was only 5 weeks and 3 days old at the time of the MTP, there was every occasion for missing the product and simply because at the surgery conducted by P.W. 3 the product was obtained, that cannot per se constitute negligence in conducting MTP by the 2nd opposite party because when MTP is conducted at an early stage of pregnancy there is every chance of missing of the product. Since the product was not obtained at the MTP she was advised to have D&C again and she was under observation and treatment from 15.9.1994 to 19.9.1994. In such circumstance, in the context of the materials placed before the District Forum a conclusion of negligence was not possible. On the other hand, the learned Counsel for the respondent in both the appeals sought to support the direction maintaining that suction evacuation ought to have been performed, had that process been adopted no missing of product could have occurred. That failure in the circumstance would constitute negligence. According to the learned Counsel from Ext. A2 it cannot be inferred that it was an early pregnancy so as to assume that there was chance of missing the product.

WITH due regard to the nature of the rival contentions what has to be seen is as to whether MTP is conducted at an early stage for pregnancy there is chance of missing the product. The material relied on by the respondent/complainant is Ext. A2 to show that the pregnancy was not at an early stage. Ext. A2 is issued by P.W. 2, he says that age from sac dimensions is 7, 8 + - 1, 2 weeks. So from Ext. A2 what is seen is, the pregnancy could be 7 or 8 weeks but subject to a variation of one or two weeks more or less. This particular aspect has to be considered in the context of another statement in Ext. A2 itself. In Ext. A2 it is stated that LMP was on 7.8.1994. The MTP was conducted on 15.9.1994. Then the pregnancy could only be 5 weeks and 3 days old. This is repeated in Ext. A10 certificate issued by P.W. 3, these LMP is stated to be 1st week of August. Ext. A10 is dated 4.10.1994. Usually date of LMP is recorded as stated by the patient. The opinion of P.W. 2 in Ext. A2 that the age of pregnancy could be 7.8 + or - 1.2 weeks has to be fixed taking into account the above feature also. WITH due regard to the statement in both Exts. A2 and A10 as to the date of the last menstural period, the probability is, the pregnancy could have been only 5 weeks and 3 days old. The age of pregnancy is repeated in Ext. A7 discharged card also. LMP is stated to be 7th August, 1994. Now the question is whether there is chance of missing the product at MTP when the same is conducted at such an early stage. R.W. 2 is an expert in Gynaecology the same is not disputed. Ex. A4 discharge card was shown to R.W. 2. There it is mentioned that no product was obtained, and the Ext. A4 contains statement to the effect that suction evacuation was done. With reference to the same R.W. 2 said, in the case of pregnancy of 5 to 6 weeks that could definitely happen. This witness was not cross-examined by the complainant. The learned Counsel for the respondent urged that on the notice for the examination issued by the Commissioner, the Counsel stated that the matter has to be adjourned out it was not adjourned. That was the reason why the witness could not be cross examined. The examination of this witness was on 16.1.1998. Thereafter though the report was filed and there was successive adjournments as could be seen from the order sheet, the complainant did not move the Court for a further opportunity, to cross examine R.W. 2. In the deposition of R.W. 2 itself it is stated neither the complainant nor her Counsel was present when R.W. 2 was examined. When such is the position, the probative value of the evidence of R.W. 2 cannot be challenged at the hands of the complainant. In this context the evidence of P.W. 3 also is relevant. In the re-examination P.W. 3 said, upto 6 weeks there is possibility of the missing of the product. In the cross examination of P.W. 3 when he was asked as to not getting the product when MTP is performed at an early stage of pregnancy, he answered "several cases". Probably to correct that attempt was made in the re-examination, and in the re-examination as has already noted, P.W. 3 only confirmed what is said in the cross examination as according to him upto six weeks there is possibility of missing of the product. Therefore up to six weeks the pregnancy could be treated as an early pregnancy and there is possibility of missing the product when MTP is performed at that stage.

AT page 100 of Postgraduate Obstetrics and Gynaecology Fourth Edition by M.K. Krishna Menon, it is stated, that the rates of continuation of pregnancy are higher when MTP was done prior to six weeks. Practice of Fertility control S.K. Chandhuri at page 229 it is stated that if little or no tissue is obtained, the physician should think of seven possibilities one of which is very early intra uterine pregnancy.

HAVING noted from the materials produced in the case that missing of the product is a possibility, the next question for consideration would be whether the process adopted by the opposite parties is in any way faulty. What is highlighted by the learned Counsel for the respondent is, whereas in Ext. A4 suction evacuation is also stated Ext. A3 case sheet does not mention as to the same. The fact that D&C was conducted is sufficiently clear from Ext. R2 summary sheet. R.W. 1 in his evidence of course said, that the case sheet recorded D&C was performed but no mention is made of suction evacuation. In the context of the aforesaid evidence relied on by the respondent it has to be taken that no suction evacuation was done by the appellants; but only D&C was done. The question for consideration would be whether the D&C in the given situation is an approved process as per medical science. In this regard the evidence of P.W. 3 is of importance, particularly in the context of the fact that no acceptable material is forth coming to show, that D&C in such circumstance is not an approved process. P.W. 3 said, he did suction evacuation method to remove the product. He proceeded to state "this method or D&C can be done". Therefore D&C is also an approved process cannot be in doubt. In this regard the decision of the Supreme Court in Achutrao Haribhau Khodwa & Ors. v. State of Maharashtra & Ors., I (1996) CLT 532 (SC)=1996 (2) SCC 634, is of importance. It is stated in para 14 : "The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence." From the very evidence of P.W. 3, it is seen that D&C is an approved process in the given circumstance. The second opposite party adopting the said method cannot be faulted, and having seen that since it was an early pregnancy the chance of missing the product being there simply because the product could not be obtained, one cannot excuse the second opposite party of having been negligent. This is particularly so as she was advised to repeat D&C, she was under observation from 15.9.1994 to 19.9.1994. The said features would show the care taken by the opposite parties in treating the complainant.

With due regard to the aforesaid material we are of the view that the finding of the District Forum cannot be supported. In that view the order of the District Forum is liable to be set aside, we do so, the appeals have to be allowed. In the result, the appeals are allowed, but in the circumstances there will be no order as to costs. Appeals allowed.