SHRIMATI KULWINDER KAUR vs KIRANPREET KAUR MAKKAR

DISTRICT Forum, Kapurthala on June 20, 1996 dismissed complaint filed by Smt. Kulwinder Kaur that she is in appeal.

KULWINDER Kaur claimed Rs. 4,77,000/as per details given in the complaint from the opposite parties. Dr. Kiran Preet Kaur and others for negligently handling her case of delivery of a child that she had to suffer meningitis on account of wrong administration spinal anaesthesia before the caesarian operation for delivery of the child was done. The other minor grouse was that she was not properly treated by the other doctors and nurses of Makker Hospital and Maternity Home where she was admitted. Different opposite parties while contesting the complaint filed different written statements inter alia denying allegations of the complainant and further denying their liability to make good the loss. Evidence was produced on affidavits, consideration of which resulted in passing of the impugned order. The District Forum formulated the following questions for adjudication : (i) Whether present complaint against the medical practitioner is not maintainable? (ii) Whether respondent No. 3 who has acted as nurse at the time of the operation could be held liable for the alleged negligence? (iii) Whether there was any deficiency in service rendered by the respondents, if so? (iv) To what relief complainant is entitled?

Question No. 1 was decided in favour of complainant in view of the decision of the Supreme Court in "Indian Medical Association v. V.P. Shantha, III (1995) CPJ 1 (SC). It was held that the medical service was not rendered free of costs. Question No. 2 was decided against the complainant holding that staff nurse, opposite party No. 3 was not to be held liable. Question No. 3 was also decided against the complainant for want of expert evidence. The complainant had failed to prove any negligent act on the part of the doctors of Makker Hospital in treating the complainant. There was thus no deficiency in service rendered by the opposite parties. Ultimately, it was held that the complainant was not entitled to any compensation that the complaint was dismissed. In appeal vide order dated March 27, 1997, it was ordered to record statement of Dr. B.S. Khurana of Daya Nand Medical College and Hospital (for short ''DMC'') as the complainant after discharge from the Makker Hospital against medical advice was admitted in DMC and treated by Dr. Khurana. The statement of Dr. Khurana was recorded, who was cross examined by the opposite parties. We have heard learned Counsel for the parties. In appeal, the only point argued by Counsel for the parties relates to question No. 3 i.e. negligence on the part of the opposite parties in rendering medical service to the complainant.

Before reference is made to the evidence produced, broad facts which are not in dispute can be recapitulated as established from the evidence of the parties. On July 13,1993, Kulwinder Kaur was admitted in Makker Hospital for delivery of a child. On July 17, 1993, a child was delivered by caesarian operation performed after administration of anaesthesia through lumber. On July 25, 1993 she was discharged from Makker Hospital against medical advice (LAMA). On the following day i.e. July 26,1993, she was admitted in Daya Nand Medical College & Hospital, Ludhiana. She left the aforesaid hospital on August 17,1993. During her stay in the Makker Hospital even after delivery of the child, blood test etc. was done but it was negative indicating that no organ of the patient was involved with infection etc. On July 26, 1993 at the time of admission of the complainant in DMC on blood test, it was found to be a case of meningitis. Subsequent culture test was recommended in order to determine the category of meningitis with which Kulwinder Kaur had suffered. However, in Culture Test Report, no such category could be determined. As already stated above on August 17,1993, she was discharged from DMC against medical advice. The District Forum did not accept the evidence of Kulwinder Kaur or her father given on affidavits on the point that their evidence could not be treated as conclusive evidence of proof of occurrence of meningitis on account of negligence of the doctors of Makker Hospital. It was in this background that the evidence of Dr. Kulwinder Kaur was recorded, which obviously falls in the category of expert evidence as far as his opinion is concerned. Regarding factual aspect, his evidence is otherwise primary evidence regarding condition and treatment of the complainant at DMC.

OBVIOUSLY present is not a case of apparent medical negligence as contemplated under the decision of the Supreme Court in "Indian Medical Association v. V.P. Shantha" referred to above. In para 27 of the judgment, such cases were enumerated as under : "It is no doubt true that some times complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical service by a medical practitioner. But this would not be so in all complaints about deficiency in rendering services by a medical practitioner There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out-patient card containing the warning as in" Chinkeow v. Government of Malaysia", (1967) 1 WLR 813 PC or use of wrong gas during the course of an anesthesia or leaving inside the patient swaps or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. The issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the Civil Court for appropriate relief."

The Supreme Court also referred to proof of medical negligence in other cases by expert evidence. Thus, in the present case, it is to be seen from the expert evidence produced as to whether the complainant has succeeded in proving negligence on the part of the opposite parties in giving treatment to her. The contention of learned Counsel for the complainant is that since no organ of the patient was effected by infection during her stay in the Makker Hospital, it should be held that occurrence of meningitis was only on account of wrong administration of anaesthesia injection in the lumber and this would be a case of apparent negligence. There is fallacy in this argument. A specific question was asked to Dr. Khurana in this respect who appeared as complainant''s witness No. 1, as under : "Q. Could infection meningitis in this case be caused on account of administration of spinal anaesthesia at the time of caesarian section?"

It was answered as under : "Ans. This is well-known that if lumber puncture is carried out not observing the A-Septic precaution, sometime infections can be introduced from outside. This is a rare cause as compared to the other causes of meningitis."

He further stated as under : "In such a case symptoms of meningitis may appear in 7 to 10 days after administration of anaesthesia of anaesthesis and at time earlier also depending upon the infecting organisms. In the present case, the symptoms were first noticed on the 7th day of the operation i.e. 3 days prior to admission in the D.M.C.

FURTHER question was put that since the patient had left Makker Hospital against medical advice, should it be taken that she got infection due to her stay in the Makker Hospital or on account of caesarian operation. The doctor replied that no expert could tell the etilogical cause of meningitis. But one has to consider temporal relationship and draw the conclusions. He could not give any definite opinion on this question. FURTHER question was put to him if in the present case source of infection causing meningitis could be determined. His reply was that in some cases, the source could be definitely determined like the presence of pnemonia in a patient in pneumococcal meningitis. If the blood culture is positive in some patients which can be concluded, but otherwise, it could not be conclusively said about the cause of meningitis. One could only conjecture and link it with the timings of the surgery in this case. He could not conclude as to what was the source of infection. To a question, the doctor answered that spinal anaesthesia can produce sever headache known as spinal headache which is just because of lumber puncture. To a specific question as to whether there was any fault in the performance of caesarian operation, he replied that there was no evidence to suggest that. From the evidence of the doctor referred to above, no firm finding can be given in the present case that the occurrence of meningitis was factually due to negligently administering anesthesia before caesarian operation in the Makker Hospital. The complainant having failed to prove this case, no compensation can be granted to her. For the reasons recorded above, this appeal fails and is dismissed. However, there will be no order as to costs. Appeal dismissed. ______________