SALVADOR FRANCIS BORGES vs ARUN BHOBE

-THE complainant has filed this complaint alleging negligence on the part of the opposite party resulting in the death of his wife Smt. Brigida Francis Borges.

IT is the case of the complainant that he is the legally wedded husband of said late Smt. Brigida Borges and that the couple has two children out of the wedlock. The said Smt. Brigida was enjoying sound health and was not suffering from any illness or infirmity right from her childhood. The said Smt. Brigida was expecting a child for the third time, and the complainant and his wife approached the opposite party to seek his expert advice regarding medical termination of pregnancy as they were finding it difficult to manage a large family. The opposite party represented to the complainant that he possessed a high degree of proficiency and knowledge and was highly capable and efficient in his work. The late Smt. Brigida informed the opposite party that she was already in an advance stage of pregnancy and enquired if medical termination of pregnancy would be safe in the facts and circumstances. The positive pregnancy report and ultra sound test report were placed before the opposite party; the ultra sound test report showing that Smt. Brigida had reached an advance stage of 12 weeks of pregnancy. After perusal of the reports the opposite party advised that medical termination of pregnancy could be undertaken without any risk factors and the whole process including hospital stay would not last for more than 12 hours and would cost around Rs. 700/-. The opposite party repeatedly assured the complainant and his wife that the medical termination of pregnancy would be without any risk and would be completely safe and devoid of any bodily harm or injury and that he had performed many such medical termination of pregnancies in the past.

Trusting the representation of the opposite party and placing complete faith in the opposite party''s capabilities, the complainant got his wife admitted on 19.5.1997 at Vrundavan Hospital and Medical Centre, Mapusa, Goa. Thereafter, the opposite party claimed to have successfully conducted medical termination of pregnancy on the complainant''s wife, after which the complainant paid a sum of Rs. 715/- towards the services rendered by the opposite party, thereafter the late Smt. Brigida was discharged from the said hospital.

THE said Smt. Brigida had to be taken back to Vrundavan Hospital on the same day as she developed complication like internal bleeding and acute pain. THE complainant thereafter sought the opposite party''s advice as to whether his wife needed to be shifted to Goa Medical College, Bambolim or take a second opinion, to which the opposite party advised that there was no need to do so. However, the complainant''s wife''s condition started deteriorating. The complainant was left with no alternative but to admit his wife at Goa Medical College on 21.5.1997 at 5.30 p.m.

THE doctors at Goa Medical College did their best to save the life of Smt. Brigida; however, their gallant efforts were in vain as the patient had suffered irreversible damage as a consequence of infarct and edema of the brain associated with medical termination of pregnancy coupled with meningtis with cerebral vein thrombosis. THE complainant''s wife Smt. Brigida Borges expired on 23.5.1997. The autopsy report clearly revealed that the death was caused solely on account of gross negligence on the part of the opposite party, namely that P.V. procedure and D and C done by local doctors was incomplete. The complainant alleged breach of case and gross negligence on the part of the opposite party. The opposite party grossly filed in not discharging and not showing a reasonable standard of care, resulting in the ultimely death of the said Smt. Brigida.

THE death of Smt. Brigida caused grave shock, anguish and mental torture and agony to the complainant-who suffered eternal loss of his wife, and to his two minor children who lost their mother at a very young age.

THE complainant issued a legal notice to the opposite party dated 15.11.1997 demanding compensation of Rs. 10 lakhs for his criminal negligence causing the death of his wife; the opposite party neither complied with the said notice nor replied to the same. The complainant prayed for a direction to the opposite party to pay a sum of Rs. 10,00,000/- by way of damages together with interest at 18%, and for further direction to refund to the complainant the fees of Rs. 715/- together with funeral expenditure amounting to Rs. 15,000/-

Upon being noticed, the opposite party filed his written version and submitted that the complaint was false, frivolous, vexatious and an abuse of process of law and did not disclose any negligence by the opposite party. On merits, it was admitted that the complainant''s wife approached the opposite party on 17.5.1997 for a medical termination of pregnancy which she desired to do for personal reasons. After examination, the opposite party confirmed that the pregnancy was about 11 to 12 weeks old and gave a letter for her admission at Vrundavan Hospital for a medical termination of pregnancy to be done on 19.5.1997 morning. It was stated that medical termination of pregnancy upto 12 weeks could be done without much risk factors and that the same was permissible under the Medical Termination of Pregnancy Act.

THE medical termination of pregnancy of the complainant''s wife was successfully carried out on 19.5.1997 at Vrundavan Hospital under general anaesthesia. She was discharged from hospital on the same day with a prescription to take antibiotics. On 20.5.1997 at 2.30 p.m., the complainant''s wife reported to the said hospital complaining of pain in her lower abdomen. Upon examination by the opposite party, it was found that the patient had a little bleeding and a slight temperature. THE patient was immediately admitted in the said hospital and put on antibiotics and syntocinon drips. She responded well to the treatment and her pain and temperature subsided. However, on 21.5.1997 noon there was a change in the patient''s behaviour and orientation. The opposite party called Dr. Digambar Naik a M.D. physician and cardiologist to examine the patient. Dr. Digambar Naik recommended continuation of the same line of treatment. AT 3.30 p.m., Dr. Digambar Naik once again examined the patient and found that her one side pupil was dilated and suspected to be some case of illness of the brain or its surrounding. Necessary treatment was immediately administered and it was decided to shift the patient to Goa Medical College Hospital in view of better facilities for investigation and treatment available there. The opposite party himself along with the nurse accompanied the patient in a Vrundavan Hospital Ambulance to Goa Medical College where she was admitted on 21.5.1997 at about 5.30 p.m.

THE opposite party denied that he had caused any damage to the complainant''s wife or that she was neglected or standard of care was not applied. It was denied that the autopsy report revealed that the cause of death was on account of opposite party''s negligence. It was denied that meningitis was due to medical termination of pregnancy. It was also denied that the opposite party did not possess the requisite qualifications and skills to conduct the medical termination of pregnancy and it was submitted that the opposite party had successfully terminated over 500 pregnancies in 15 years practice as a licensed Gynaecologist and Obstetrician. The Commission examined DR. M.N. Pal, Dean and Professor of Obstrics and Gynaecology, Goa Medical College and Dr. B.N. Reddy Professor (Forensic Sciences), Goa Medical College on behalf of the parties. Parties filed their affidavit-in-evidence and reiterated the stand taken in the pleadings.

WE have heard Mr. B.D. Nazareth and Mr. E. Afonso on behalf of the complainant and opposite party respectively. Counsels also filed synopsis of arguments.

THE following points crystalise for determination of this complaint: (i) Whether the death of Smt. Brigida Borges was caused by meningitis consequent to incomplete D and C. (ii) Whether the complainant is entitled to the reliefs claimed. Point No. 1 The complainant has placed heavy reliance on the Memorandum of Autopsy dated 24.5.1997 prepared by Department of Forensic Medicine and Toxicology, Goa Medical College. Particular emphasis was laid on "Opinion as to cause of death" at page 7 which read as follows: ''Due to meningitis with cerebral vein thrombosis and infact and edema of brain associated with medical termination of pregnancy".

However, the deposition of the two medical experts examined by this Commission tells a different story.

DR. B.N. Reddy, Professor of Forensic Medicine, Goa Medical College, who conducted the post mortem stated in cross that "no frank pus was seen in the cavity. Thrombosis of uterine vessels in the lower segment seen. There were no products of conception and no remnants of membrane were seen. There was no perforation of uterus or vagina". Dr. M.N. Pal, Dean of Goa Medical College stated in cross that where there is no frank pus, no product of conception and no remnants of membrane in the uterus signifies that there is no evidence of clinical sepsis nor any remnants of the product of conception for which medical termination of pregnancy was performed. When attention of the said witness was drawn to the post mortem report wherein it was stated that no free fluid or pus or blood was seen in the abdomen cavity, the witness stated that it signified that there was no sepsis within he abdominal cavity nor was there any blood from accidental damage of the uterus following medical termination of pregnancy procedure. The witness further agreed that the medical termination of pregnancy was complete and there was no sepsis. To a question as to when there is no sepsis in the uterus and its surroundings, whether medical termination of pregnancy can cause meaningitis, the witness answered that this was ''very very unlikely''. When asked to explain what he meant by very very unlikely, the witness answered that if the uterus was clear of sepsis and also its surroundings i.e., peritoneal cavity is clear of sepsis, then it would be very very unlikely that medical termination of pregnancy could be cause of meaningitis in the case in question. He further stated that since he did not find any sign of primary sepsis in the abdominal cavity and uterus and the signs of sepsis were found in the spinal cord. It was his opinion that medical termination of pregnancy did not appear to be the cause of death.

THE evidence of the two medical experts discloses that there is a concurrence in the opinion that medical termination of pregnancy was not the cause of meningitis that ultimately resulted in the death of late Brigida. THE evidence seems to suggest that the patient was already incubating meningitis at the time when medical termination of pregnancy was performed by the opposite party. On the other hand, there is no evidence to suggest any negligence or lack of due care and negligence on the part of the opposite party. The complainant has relied on Nilesh Joshi v. Dr. C.P. Lulla, and Others, 1998 (1) Bom.CR (COn.) page 81, of State Commission Maharashtra and Spring Meadows Hospital v. Harjol Alluwalla, III (1998) CLT 684 (SC)=(1998) 4 SCC pg. 39. There is no dispute on the law settled by these judgments. However, the same do not apply to facts of this case.

IN view of our findings above, the complainant-consumer would not be entitled to any reliefs.''

IN the light of what is discussed above, we pass the following order: The Complaint No. 4/1998 stands dismissed. IN the circumstances, parties shall bear their own costs. Complaint dismissed.