Sharma Nursing Home Through Its Principal Officer vs Geeta Through Her Legal Representatives

THIS First Appeal has been filed by Dr. Sharma Nursing Home through its Principal Officer, Appellant herein and Opposite Party before the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) being aggrieved by the order of the State Commission, who allowed the complaint of medical negligence filed against it by Ms. Geeta, Complainant before the State Commission.

FACTS : Respondent-Complainant had visited the Appellant-Nursing Home for treatment of medical problems on 09.04.1997. These problems, however, persisted and Respondent-Complainant found herself becoming unfit to work. Following the Dilation & Curettage (D&C) procedure that was done on Respondent-Complainant, her condition deteriorated and ultimately she found that her hands and legs were not working. When she approached a Government Hospital for further treatment and advice, she was informed that she had become permanently disabled upto 30%. She contended that this disability occurred because of the unnecessary surgical procedure of D&C conducted on her and, therefore, issued a notice to the Appellant-Nursing Home on grounds of medical negligence in operating on her although the ultrasound indicated that there was no abnormality and as a result of the unnecessary surgery she had become permanently disabled. On not getting a satisfactory response, Respondent-Complainant filed a complaint before the State Commission on grounds of medical negligence and deficiency in service and requested that Appellant-Nursing Home be directed to pay her a lump-sum compensation of Rs.10.00 Lakhs since she was earning Rs.4000/- per month and since she was maintaining her widowed mother and other members of the family, as also any other relief as considered appropriate including litigation costs. Appellant-Nursing Home on being served filed written reply denying the above allegations and stated that the Respondent-Complainant was diagnosed with amenorrhoea for two months, vaginal bleeding and lower abdominal pain and it was stated that Respondent-Complainant herself wanted that the D&C procedure be conducted. Therefore, after taking written consent of her brother, who had accompanied her, D&C procedure was done under general anesthesia which was administered by a Doctor who was an MD in Anesthesia and in a well-equipped operation theater. Respondent-Complainant was discharged in a satisfactory condition and asked to come back after the histo-pathological report of the tissue which had been sent for culture was received. However, Respondent-Complainant did not turn up. Since the surgery was conducted by well-qualified Doctors after proper examination of Respondent-Complainant and she was discharged in a satisfactory condition, there was no medical negligence on the part of Appellant-Nursing Home and the complaint appears to be concocted with some ulterior motive best known to Respondent-Complainant.

DURING the pendency of the complaint before the State Commission and 4 years after the D&C procedure, Respondent-Complainant passed away on 23.08.2001 and her Legal Representatives were brought on record to pursue the case.

THE State Commission on the basis of evidence produced before it concluded that the Respondent-Complainant was subjected to D&C procedure which was not required in view of normal ultrasound report, which stated "uterus is of normal size and echo-pattern. Minimal fluid seen in the cavity. No sac of POCs seen. No fibroid or mass lesion seen. POD is clear. No pelvic or adenexal mass lesion seen. No vesicle calculus or mass lesion seen ". This unnecessary surgery as certified by Bara Hindu Rao Hospital resulted in restriction of movement of both hands, legs and elbows of Respondent-Complainant indicating 30% disability. The State Commission also took note of the fact that Respondent-Complainant passed away 4 years after the surgery. The State Commission, therefore, concluded as follows: "10. The aforesaid circumstance of ultrasound report necessitating no such operation amounts to negligence which resulted in 30% disability. Though the complainant has subsequently died, may be, due to certain other reasons but not due to the operation, we deem that a lump sum compensation of Rs.50,000/- which shall also include the cost of litigation, shall meet the ends of justice. "

Being aggrieved by the above order, the present first appeal has been filed.

LEARNED counsel for Appellant-Nursing Home was present and made oral submissions before us. No one was present on behalf of Respondent-Complainant. However, a reply on behalf of Respondent-Complainant was submitted in respect of the appeal filed by Appellant-Nursing Home essentially reiterating the facts as stated in the original complaint before the State Commission.

LEARNED counsel for the Appellant-Nursing Home stated that the State Commission erred in concluding that an unnecessary D&C procedure was conducted. Even though the ultrasound did not show any specific abnormality, the medical examination of the Respondent-Complainant revealed that she had come with a history of incessant and continuous vaginal bleeding because of which it was necessary to conduct the D&C procedure. This was conducted after proper clinical and diagnostic examination by well-qualified Doctors and after taking due care and, therefore, the disability with which Respondent-Complainant suffered could not be attributed to the above surgery. We have heard learned Counsel for the Appellant-Nursing Home and have also gone through the evidence on record, including the written submissions made on behalf of the Respondent-Complainant before the State Commission as also this Commission. The fact that Respondent-Complainant visited the Appellant-Nursing Home where a D&C procedure was conducted is not in dispute. It is also a fact that this D&C was done although the ultrasound report indicated no abnormality as is clear from the specific finding that the uterus was normal; minimal fluid was seen in the cavity; no sac of POCs was seen; no fibroid or mass lesion was seen, POD was clear; no pelvic or adenexal mass lesion was seen; and no vesicle calculus or mass lesion was seen. Counsel for the Appellant-Nursing Home has sought to explain the reasons for conducting the D&C procedure despite the ultrasound finding being normal by stating that this was necessary because Respondent-Complainant was having continuous vaginal bleeding. However, from the case history of the Respondent-Complainant which was filed in evidence, we note that the Consultant at the Appellant-Nursing Home had in fact stated that the Respondent-Complainant had amenorrhoea for 2 months. Amenorrhoea is the absence of menstrual period in a woman of reproductive age and, therefore, Appellant-Nursing Home ''s contention that Respondent-Complainant was having continuous and incessant bleeding for several days is not borne out by the medical evidence on record. Even if she had experienced some bleeding for a few days, there was no medical evidence to indicate that D&C, which is a surgical procedure under general anesthesia, was necessary in the instant case especially in view of the normal ultrasound report.

WHAT constitutes medical negligence is now well-established through a catena of judgments of the Hon ''ble Supreme Court of India (e.g. in Jacob Mathew v. State of Punjab [(2005) 6 SCC 1])and essentially three principles are required to be followed: (i) Whether the doctor in question possessed the medical skills expected of an ordinary skilled practitioner in the field at that point of time; (ii) Whether the doctor adopted the practice (of clinical observation diagnosis - including diagnostic tests and treatment) in the case that would be adopted by such a doctor of ordinary skill in accord with (at least) one of the responsible bodies of opinion of professional practitioners in the field and (iii) whether the standards of skills/knowledge expected of the doctor, according to the said body of medical opinion, were of the time when the events leading to the allegation of medical negligence occurred and not of the time when the dispute was being adjudicated.

APPLYING these principles to the present case, it is apparent that Appellant-Nursing Home was guilty of medical negligence in carrying out the D&C procedure in the absence of any diagnostic or clinical evidence to support the need to conduct this procedure because of which the Respondent-Complainant suffered a disability. In view of the above circumstances, we agree with the finding of the State Commission that there was medical negligence on the part of Appellant-Nursing Home in conducting an unnecessary surgery and uphold the same in toto. The present First Appeal is, therefore, dismissed. Appellant-Nursing Home is directed to pay the Legal Representatives of the Respondent-Complainant a sum of Rs.50,000/- within a period of 6 weeks.