VINITHA ASHOK vs Lakshmi Hospital

THE complainant, Smt. Vinitha Ashok, aged about 26 years has filed this complaint under Section 21 of the Consumer Protection Act, 1986. Respondent No. 1, Lakshmi Hospital situated at Ernakulam, Cochin is owned by Dr. K.K.R. Warriar, who is the husband of Respondent No. 2, Dr. Santha Warriar. Respondent No. 3 Dr. Somalatha P. Shenoy, Respondent No. 4 Dr. C. Balachandran and respondent No. 5 Dr. Mohan are also working in the hospital in various capacities. According to the complainant, she had a son born around 6.6.1989 by a caesarean operation. Subsequently, she and her husband suspected pregnancy and decided to consult a doctor and they went to Lakshmi Hospital on 3.2.1990. THE complainant was examined by respondent No. 2, Dr. Santha Warriar, M.B.B.S., D.R.C.O.G. (London), who is working as Gynaecologist and Obstetrician in that hospital. THE said doctor told the complainant that she was pregnant and advised her to terminate the pregnancy in view of the fact that earlier delivery was a caesarean one. THE complainant was also advised to meet the Doctor on 10.2.1990 for terminating the pregnancy. However, on 9.2.1990 also the complainant went to the said Hospital. According to the complainant, Dr. Santha Warriar without any proper examination presumed that it was a case of termination of undesirable normal pregnancy.

IT is further the case of the complainant that on 10th February, 1990, she along with her husband and sister-in-law arrived at Lakshmi Hospital in the morning at about 8.30 a.m. Dr. Santha Warriar took her to labour room. Neither she nor her husband suspected anything unusual. At about 10 O''clock respondent No. 3, Dr. Somalatha informed the complainant''s husband that the complainant was bleeding profusely and therefore, they have decided to conduct an operation. Dr. Somalatha also told the husband of the complainant that the complainant was in a very serious condition and it was better to inform her near relatives. At about 4 O''clock, the operation was over and the complainant''s relatives were informed that she was safe and under sedation. Dr. Santha Warriar informed the complainant''s husband that it was a case of Cervical Pregnancy and her uterus has been removed. The complainant further alleged that an unnecessary D & C operation was performed upon her by the respondent-doctors which resulted in the removal of her uterus, which was a vital organ. The removal of her uterus was due to rash and negligent act of Dr. Santha Warriar since she had conducted the operation without proper examination and diagnosis. In fact there was no diagnosis. If the doctor had been careful in her examination, it could have easily found out that it was a complicated case of Cervical Pregnancy and the doctors should not have conducted the operation in a casual manner. The operation could have been fatal to the complainant. The negligence of Dr. Santha Warriar has deprived the complainant of her uterus at a very young age. The person who holds himself out ready to give medical advice and treatment impliedly undertakes that he/she is possessed of skill and knowledge for the purpose. When consulted by a patient, a doctor owes her certain duties, namely, duty of care in deciding whether to undertake that case and a duty of care in the administration of that treatment. The Doctor must bring to his/her task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. The diagnosis of an ailment or administration of a treatment is normally the first matter with which a doctor is concerned. A doctor is held liable in an action for negligence if he/she makes a wrong/negligent diagnosis/administration of a treatment and there by causes injury to the patient. A mistaken/negligent decision for a particular administration of a treatment is necessarily a negligent act, liable for compensation. This is so particularly because the mistake of such nature implies an absence of reasonable skill and care on his/her part, regard being had to the ordinary level of skill. The complainant has claimed compensation to the tune of Rs. 15 lacs, details of which have been annexed to the complaint, from the respondents as she is mentally disturbed and psychologically depressed thereby impairing her health and future chances of pregnancy. She suffers from irritability, depression and total lethargy. She avoids company of her husband and this creates a lot of disharmony and tension in the family.

Dr. K.K.R. Warriar, Managing Partner of Lakshmi Hospital, filed a counter. According to him, the hospital has employed extremely competent and qualified doctors only. They have not been negligent to any extent either in diagnosing the complainant''s condition or in administering the required treatment. The complainant was having a Cervical Pregnancy extending to the lower segment of her uterus. This is a very complicated and rare type of pregnancy which cannot be diagnosed by clinical or vaginal examination, particularly, during the early weeks of pregnancy. Hysterectomy is arecommended and established procedure for tackling excessive bleeding in the case of Cervical Pregnancy. In the case of the complainant, Hysterectomy had to be resorted to, to save her life when excessive bleeding started. The excessive bleeding was not on account of any negligence in the diagnosis or on account of any faulty procedure adopted in the course of surgery. Such excessive bleeding is normal in all cases of Cervical Pregnancies. He had been receiving telephone calls purporting to be from a person from New Delhi over the STD threatening that unless the claim made by the complainant was acceded to or compromised, adverse publicity against the Hospital and the doctors would be made in the newspapers. After the receipt of the complaint, he had checked the original records relating to the complainant in the Hospital and it was noticed that some pages have been forcibly plucked out from the record-folder. The consent forms for the surgery also had been plucked out. The fact that the complainant has produced photostat copies of a portion of the medical record clearly indicates that she and her husband are responsible for this misdeed. This respondent further adopted the counter affidavit filed by respondent No. 2, Dr. Santha Warriar.

DR. Santha Warriar, in her counter affidavit pleaded that she is working as a Gynaecologist and Obstetrician in the Lakshmi Hospital, which belongs to a partnership firm consisting of her husband and others. She was a paid employee in the hospital. Respondent No. 3, DR. Somalatha P. Shenoy, is another Gynaecologist and Obstetrician working in the same hospital. Respondent No. 4 DR. C. Balachandran is Surgeon attached to the Hospital and while respondent No. 5, DR. Mohan is a visiting Anaesthetist, who occasionally officiates as Anaesthetist when surgeries are performed in the Hospital. DR. Santha Warriar holds degree of M.B.B.S. granted by the Kerala University and a Post-graduate qualification of D.R.C.O.G. (London). DR. Somalatha holds degree of M.B.B.S. and a Diploma in Gynaecology & Obstetrics (D.G.O.). DR. Balachandran holds the degrees of M.B.B.S., M.S. (General Surgery) and also M.CH. (Paethatric Surgery). DR. Mohan holds degree of M.B.B.S. besides the specialised qualification D.A. in Anaesthesia. The Hospital is inter-alia equipped with facilities for dealing with problems connected with the disciplines of Gynaecology and Obstetrics and the doctors and surgions working in the Hospital are adequately qualified and are dedicated professionals. The Hospital is licensed to perform Medical Termination of Pregnancy (for short MTP). On merits DR. Santha Warriar pleaded that the complainant and her husband for the first time came to her on 3.2.1990 and they stated that the complainant was pregnant and both were desirous of medically terminating the pregnancy. The complainant also stated that she had undergone a Caesarean Section in connection with her first delivery which took place in June, 1989 in Krishna Nursing Home where DR. Sreedevi attended to her. The complainant also stated that she had her last menstruation on 8th December, 1989 and noticed some spotting on 31st December, 1989 and 4th January, 1990. The complainant also showed her a pregnancy test report dated 2.2.1990, according to which she had a positive pregnancy test. The complainant had complained of the usual pain and discomfort associated with the early period of pregnancy. She (i.e. DR. Santha Warriar) explained to the complainant and her husband the inherent risks involved in medical termination of pregnancy, especially when the 1st delivery was by way of Caesarean Section. Since the complainant and her husband had already made up their mind to medically terminate the pregnancy, the complainant was given a general examination and also a vaginal examination on 3.2.1990. Her vaginal examination showed that her uterus was ante-verted and was 6-8 weeks in size. Her addinexa did not show any abnormality. She (i.e. DR. Santha Warriar) had explained to the complainant and her husband of all the complications of performing a medical termination of pregnancy on a patient who had recently undergone a Caesarean Section. It was also told to them theat excessive bleeding, particularly, from the uterine scar of the Caesarean Operation, may necessitate abdominal surgery and even removal of the uterus if the bleeding could not be stopped. In spite of being told of all these complications the complainant and her husband were insistent that they wanted to terminate the pregnancy. S he, however, advised them to think it over again and gave them an appointment for MTP on 10.2.1990 if their decision was to have the MTP done. The complainant was also instructed to report on the evening of 9.2.1990 for insertion of "lamineria tent" for dilatation of cervix, to facilitate M.T.P. being done on 10.2.1990 and that was the reason for which the complainant came to the Hospital on the evening of 9.2.1990. It was incorrect that she had advised the complainant that she was pregnant and that the pregnancy should be terminated. On 10.2.1990, the M.T.P. was started at 9.00 a.m. under general an aesthesia. An Intravenous DRip was started along with Syntocinen infusion. When the procedure was started, the complainant began to bleed profusely. Signs of internal bleeding were also seen and immediately the complainant''s husband, who was waiting outside, was informed about the condition of the patient. Thereafter an exploratory Laporotomy was performed. It was seen that there was plenty of blood in the peritoneal cavity. The lower uterine segment was opened and all the products of pregnancy were removed. It was seen that the products of pregnancy had attached to the wall of the upper part of the cervical canal and that it had grown into the lower uterine segment and also got adherent to the uterine scar left by the previous Caesarean Section. It was also seen that her urinary bladder had become adherent to the uterine scar. The bleeding was not controlled ever after evacuation and suturing of the lower uterine segment. Therefore, the 4th respondent, DR. Balachandran was called in. Every attempt was made to preserve the uterus. However, the complainant''s condition deteriorated very fast and she was bleeding profusely. It was under these circumstances that an emergency Hysterectomy was performed to control the bleeding and to save the complainant''s life. While separating the bladder from the uterine scar a small rent was produced in the bladder which was duly repaired by layers by DR. Balachandran. Both the tubes and ovaries were normal and were retained. The complainant was discharged on 22.2.1990 with an advice to report for a further check up after a month. On 24.3.1990 she reported in the Out-Patient clinic for a routine check-up. She had no specific complaint at that time. She was advised to take iron capsules. On 5.5.1990, the complainant again reported in the O.P. Department and she had no complaints at that time also. On 16.6.1990, the complainant again came with a complaint of occasional mild abdominal pain and her caecum was just palpable. She was advised to take a course of anti-ameobic drugs. During none of these visits the complainant complained of any psychological or urinary problems. Dr. Santha Warriar also denied the allegations leveled by the complainant about the former''s rashness and negligence. She also denied the allegation that the operation was conducted without proper examination and diagnosis. According to her, the operation was performed in accordance with well-established procedures. The complainant had come to the Hospital with a confirmed diagnosis of pregnancy and it was her desire and of her husband to have the pregnancy medically terminated. The pregnancy was estimated to be approximately 6 to 8 weeks on vaginal examination of her uterus and this tallied with her menstrual period. The subsequent obstetrical procedures also established that the complainant was pregnant. There are certain inherent dangers in a conception soon after a child birth by Caesarean Section. This is particularly due to the fact that the uterine scar caused by a Caesarean operation could by itself cause complications and may lead to excessive bleeding. Medical termination of pregnancy is therefore, conducted on such patients only after adequate precautions are taken to have sufficient cross-matched blood in reserve. In the case of the complainant, the products of conception were in the upper portion of the cervical canal extending also to her lower uterine segment. In normal cases the products of conception would get attached to some point in the uterus itself and would start growing within the uterus. A Cervical Pregnancy is caused by the fertilised ovum getting attached to some point in the cervical canal and start growing from there. A ectopic pregnancy is a pregnancy that is implanted outside the uterine cavity, that is, at a site that is not designed either to receive the conceptus or to permit it to develop. A Cervical Pregnancy is an extremely rare form of ectopic pregnancy. According to medical textbooks, such a pregnancy occurs only in one out of about 18,000 pregnancies. In the case of cervical pregnancy the ovum implants within the cervix and at the internal of and the pregnancy proceeds to develop in the fibrised cervical wall. In the complainant''s case, the development was not only in the cervical canal but had also extended into the lower uterine segment which had a scar left by the previous cesarean section. It would be virtually impossible to detect such a condition by a clinical or vaginal examination especially when the pregnancy was only 6 to 8 weeks old. It is reported that there has been some small measure of success in detecting a cervical pregnancy at later stages with the aid of trans-vaginal ultrasound scanning but that facility was not then available in any of the hospitals in Cochin city or even in any of the Medical Colleges in Kerala State. Excessive bleeding even without any surgical intervention is one of the features of cervical pregnancy. The complainant did not complain of any excessive bleeding before the medical termination of pregnancy was done. In the case of cervical pregnancy, the chances of bleeding getting out of control are very high since the evacuation has to be done from the cervical canal which would result in excessive internal bleeding. Performance of an emergency hysterectomy recommended standard procedure for controlling excessive bleeding in the case of a cervical pregnancy. Other means of arresting the bleeding were also attempted but without success and unless an emergency hysterectomy was done, the complainant''s life was in grave danger. Moreover, there was no causal connection between the removal of the uterus, which in any event was necessary to save her life, and the alleged negligence in not diagnosing cervical pregnancy prior to the surgery. Diagnosing the type of cervical pregnancy which the complainant had by vaginal or other examination when the pregnancy was only 6-8 weeks old was an impossibility. None of the doctors including herself was negligent in the performance of their professional duties and the complainant has no cause of action to proceed against any of them. The complaint has been filed only to black-mail the Hospital and the doctors working therein.

ABOUT the alleged plucking out of some papers from the complainant''s medical record, the plea of Dr. Santha Warriar is that the outpatient examination room is in 2 Sections separated only by a curtain. The medical record will be taken out and placed on the doctor''s table before the patient is examined behind the curtain. On all the occasions when the complainant was examined, her husband was allowed to sit in the room. On finding that the complainant had produced photostat copies of some pages of the medical record along with the petition, the original record was examined and it was noticed that the originals of the sheets, copies of which are now produced as exhibts, along with the original consent letters given prior to the operation had been plucked out of the record-folder. The remaining sheets are even now in the record folder. This appears to have been done by the complainant''s husband when the complainant was being examined behind the curtain. There is no other examination for the complainant being able to produce the photostat copies of Hospital records which are never given to patients. Respondent No. 3 Dr. Somalatha in her counter affidavit pleaded that her services were not hired by the complainant at any time, though it was a fact that she assisted Dr. Santha Warriar at the time of operation on 10.2.1990. Thereafter she saw the complainant on two occasions after her surgery. According to her, none of the doctors including herself were negligent in anything that they did in the course of the treatment of the complainant. She also adopted the counter affidavit filed by the 2nd respondent and according to her it contained true facts. Respondent No. 4, Dr. C. Balachandran also adopted the counter of respondent No. 2, Dr. Santha Warriar. According to him, when he was called in, the complainant was profusely bleeding and he made every attempt possible to stop her bleeding but it was impossible to do so having regard to the nature of her pregnancy and the complications caused by the uterine scar to which part of the products of pregnancy had become adhered. There was also the complications of her bladder having got adhered to the uterine scar. The only way to save her life was to perform a hysterectomy. There was some element of risk involved in all surgical operations. As the surgery proceeds it is not uncommon for complications to set in. The operating surgeons have to take a spot decision to the best of their judgments as to how the patient''s life is to be saved when such complications set in. The performance of the hysterectomy does not result in any impediments to the complainant''s life. Having regard to the nature of complainant''s pregnancy she was bound to undergo a hysterectomy operation sooner or later, since such a pregnancy would never attain full term and has to be terminated.

RESPONDENT No. 5, Dr. Mohan also adopted the affidavit filed by respondent No. 2, Dr. Santha Warriar and also narrated the procedure of operation performed upon the complainant.

THE complainant filed a rejoinder affidavit to the counter filed by respondent No. 2. It is more of an argumentative type. She further pleaded that there was not even an iota of evidence to show that she was suffering from pregnancy let alone a rare condition of pregnancy. No Histo-Pathological examination was conducted which was the only way to prove that it was a case of Cervical Pregnancy. She also denied the fact that the doctor had ever warned or informed her about the dangers. She would have surely opted for allowing the pregnancy to continue if it was safer from health point of view or in any case opted for a 2nd Caesarean if it was less risky. The complaint also filed a rejoinder affidavit to the counter affidavits filed by other doctors, in which she adopted the rejoinder filed to the counter affidavit of respondent No. 2.

The complainant''s Counsel made a prayer before this Commission for giving an opportunity to examine some medical experts. He suggested that some doctors from Delhi, whom he had not even contacted, may be called by this Commission. This Commission vide it''s Order dated 8th October, 1991 ordered that as both the parties were permanent residents of Ernakulam District in Kerala and there was no dearth of expert doctors in Kerala where there are four or five medical colleges, therefore, it would be in the interest of both parties to have the evidence recorded at Ernakulam by the President of District Forum, Ernakulam. Both the parties were given an opportunity to request the President of the District Forum to summon any expert doctors of their choice either from any of the medical colleges in Kerala or from any private institution of eminence in Kerala.

THE complainant examined PW 1, Dr. Indira Devi Gynaecologist, Govt. Hospital, Kothamangalam and PW 2, Dr. A.K. Radhakrishnan, Gynaecologist, Govt Hospital, Perumbavoor. PW1 stated that she was only a Diploma holder and she got the same only 4 years back and hence could not authoritatively state any expert opinion. PW2 also stated that he was not qualified and experienced to give an expert opinion. Both the witnesses were therefore, given up by the complainant''s Counsel stating that in view of the complainant''s Counsel stating that in view of the statements made by them, there was no evidentiary value for their statements even if he continued their examination. In fact both PWs had remained students of RW1 Dr. Rajan. THE complainant and her husband did not appear in the witness box. THE respondents examined RW1, Dr. Rajan, Professor and Head of the Department of Obstetrics and Gynaecology, Medical College, Kottayam, as an expert at the instance of the respondents. Respondent No. 2,3 and 4 also made their statements. THE above evidence recorded by the District Forum was forwarded to this Commission along with a report of the proceedings. The learned Counsel for the complainant argued that the errors of omission - like delay in making diagnosis for instituting treatment and failure to use indicated tests or take precautions to prevent injury are often classed as negligent acts. He has also cited the judgment delivered by House of Lords in Bolam v. Friern Hospital Management Committee, 1957 (1) WLR 582, which defines the appropriate standard of care required from the Doctors as follows: "The appropriate test is the standard of the ordinary skilled man exercising and professing in have that special skill. A man need not possess the highest expert skill. It is well established now that it is sufficient if he exercised the ordinary skill of an ordinary competent man exercising that particular art".

He has also cited a judgment of the Supreme Court reported as 1969 (1) SCR 207 in which it was remarked: "A person who holds himself out ready to give medical advice and treatment impliedly holds forth that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient, owes certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give and a duty of care in deciding what treatment to give and a duty of care in the administration of that treatment. A breach of any of these duties gives a right of action of negligence against him. The medical practitioner has a discretion in choosing the treatment which he proposes to give to the patient and such discretion is wider in cases of emergency, but he must bring to his task areasonable degree of skill and knowledge and must exercise a reasonable degree of care according to the circumstances of each case".

On the other hand, the learned Counsel for the respondents has relied upon AIR 1969 SC 128, wherein it was remarked: "A medical practitioner owes a reasonable degree of care to the patient in the matter of administration of treatment. Neither the very highest nor a very low degree of care and competence judged in the particular circumstances of the case is what the law requires. The degree of care is that of an average reasonably competent doctor".

It was futher remarked: "Even in cases where a mistake is made either in the diagnosis or in the administration of treatment, the onus of proving that such mistake was the result of negligence on the part of the Doctor is on the complainant".

Reliance was also placed upon AIR 1989 SC 1570, in which it was remarked: "Where the operation is a race against time, the Court will make greater allowance for mistakes on the part of the Surgeon or his assistants taking into consideration the Risk Benefit Test".

"If a doctor has followed a course of treatment or procedures accepted by and followed by a responsible section of the profession, he would not be guilty of negligence even if another section of the profession do not subscribe to that practice and follow a different course". "The proximate causal connection between the alleged negligence and the injury has to be established conclusively by the petitioner".

The learned Counsel for the respondents also placed reliance on Usha v. G.P. Nambiar & Another, 1985 KLT 970 DB, wherein it was remarked: "The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, acting with ordinary care. It is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art".

From the rulings cited by both the parties it is clear that the law does not require that a doctor in the discharge of his duty of care should use the highest degree of skill since they may never be acquired. It is enough for the doctor to show that he acted in accordance with the general and approved practice. A mistaken diagnosis is not necessarily a negligent diagnosis. A practitioner can be held liable in this respect only if his diagnosis is so palpably wrong as to prove negligence, that is to say, if his mistake is of such a nature as to imply an absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the profession. In this respect, reference can also be made on Philips India v. Kunjupennu and Another, AIR 1975 Bombay 306 DB.

WE shall now proceed to discuss the evidence and the arguments advanced by the learned Counsel for the parties will be discussed in the light of the legal position as expounded in the above pronouncements. We are constrained to observe that the complainant has not come before this Commission with clean hands. In para No. 5, the complainant has averred that she along with her husband, Ashok Kumar suspected pregnancy and decided to consult a doctor though she had no pain or discomfort and she went to Lakshmi Hospital, i.e., respondent No. 1 on 3.2.1990. This statement is entirely incorrect. Annexure marked ''A'' is the photocopy about the notings made by Dr. Santha Warriar, respondent No. 2 on 3.2.1990,9.2.1990 and 10.2.1990 respectively. The noting dated 3rd February, 1990 on which date the said Doctor had examined the complainant, shows that on 2nd February, 1990, the complainant had got her pregnancy test done in some other private clinic and the test was a positive one. This noting must have been made on the basis of history told to her by the complainant. Therefore, the allegation of the complainant that she had gone to the Lakshmi Hospital only to consult about the suspected pregnancy is a false one. The complainant has further averred in that para that it was Dr. Santha Warriar,who told her that she was pregnant and advised her to terminate the pregnancy in view of the fact that earlier delivery was Caesarean. The complainant must have consulted Dr. Santha Warriar about the termination of the pregnancy as her son by the previous pregnancy was only about 8 months old and she was breast feeding him. The complainant has further stated in the same para that she was advised to meet the Doctor on 10th February, 1990 for the termination of the pregnancy. In the same para, she has also stated "however on 9th February, 1990 also the petitioner went to the hospital". The complainant has not explained why she had gone to the hospital on 9th February, 1990 when, according to her, the Doctor had advised to meet her on 10th February, 1990 for termination of pregnancy. The notings in Exhibit ''A'' clearly shows that 9th February, 1990 was fixed for Tent Insertion. In the nothings dated 3.2.1990, relevant facts were mentioned, i.e., the earlier delivery was by a Caesarean in K.N. Hospital and that operation was conducted by Dr. Sreedevi in June, 1989. The M.T.P. (Medical Termination of Pregnancy) was fixed for February 10,1990. Notings about clinical and per vagina examinations were also made. Other facts told by the complainant were also noted. Therefore, the complainant''s allegation that Dr. Santha Warriar without any proper examination presumed that it was a case of termination of pregnancy is incorrect. The complainant had approached Dr. Santha Warriar for M.T.P. The document annexed as ''A'' is a photocopy of the Hospital records. It is the consistent version of the respondents that those papers along with consent forms had been plucked out most probably, by complainant''s husband when she had come for check-up on 6th June, 1990 and when she was being examined behind the curtain by Dr. Santha Warriar, while the husband was sitting in the other portion of the room in which the Hospital records relating to the case of the complainant were kept on the table. The complainant has not given any explanation for the possession of these records. It is common knowledge that no Hospital gives photostat copies of such records to the patients. It the photostat copies of the documents were issued by the Hospital, the Hospital would have produced the originals while they produced the remaining records, photocopies of which are Exhibit ''B.1.'' This shows that some dishonest intention had crept in the mind of the complainant, when she had gone to the Lakshmi Hospital for check-up on 6th June, 1990. She must have been instigated by somebody. Before filing the complaint, she must have consulted some advisers and that is the reason why the relevant papers were removed on her behalf from her case file. The act of the removal of the Hospital records by the complainant or on her behalf by somebody deserves severe condemnation.

IN her rejoinder, the complainant in para 6 which is her reply on merits to para No." 6 of the counter of respondent No. 2 has stated that there was not even an iota of evidence to show that she was pregnant and let alone the rare case of pregnancy. When she had a positive test of pregnancy done on 2nd February, 1990, it is not understand how she is making that categorical statement that she was not at all pregnant. However, both in the original complaint petition and also in the common rejoinder filed to the counter affidavits of respondents Nos. 3,4 and 5, the complainant has admitted that she was pregnant. The Counsel for the complainant was unable to explain at the hearing this basic contradiction. The said contradictory stand of the complainant throws a lot of doubt upon her contention, that she was subjected to an uncalled for M.T.P.

WE may mention one more fact here. The respondent Nos. 2, 3 and 4, i.e., Dr. Santha Warriar, Dr. Somalatha and Dr. Balachandran have appeared in the witness box and they offered themselves for cross-examination which the other party did at length. Surprisingly enough, the complainant or her husband has not apppeared in the witness box to give sworn testimony in support of their version or to contradict RW2, Dr. Santha Warriar about the facts which were within their knowledge. The husband of the complainant was appearing on each of the hearings when the statements of the respondent''s witnesses were being recorded by the District Forum as is clear from the statement of respondent No. 2. Respondent No. 5, Dr. Mohan, Anaesthetist, though was appearing on earlier dates, could not appear on the date when the evidence of respondents was being concluded as on that date he had to go away to Madras on account of the operation of his son. A short date was requested on behalf of the respondents for his examination and an application to that effect was filed. That application was opposed by the complainant''s Counsel. The District Forum while rejecting that application has remarked as follows: "Today I heard the Counsel for respondent, Shri T.R.G. Warriar and the Counsel for complainant, Shri R. Sathish. At the time of argument, the learned Counsel for the respondents submitted before me that due to the unexpected Bundh at Madras and postponing of the surgery of Dr. Mohan''s son to 31.12.1991 at Vijaya Hospital, he was not able to come to Ernakulam either on 3.1.1992 or on 4.1.1991 and he has requested that the case may be adjourned to 6.1.1991 for recording his evidence. Learned Counsel for the complainant vehemently opposed this request and invited my attention to the Order of the National Commission stating that the National Commission has given permission to examine only expert doctors practicing in Kerala and Dr. Mohan is the 5th respondent and an anaesthetist and he is not an expert witness according to the Counsel for the complainant".

The District Forum rejected that application. It is surprising that the examination of Dr. Mohan was objected to by the complainant''s Counsel on the ground that he was a party and was not to be examined as an expert. However, when RW1 Dr. Rajan was being examined, the Counsel for the complainant stated that before the examination of the expert witness, respondent No. 2 who was present in Court be examined first. Surprisingly enough, the Counsel for the complainant did not object to the examination of the respondent No. 2 on the ground that she was a party to the case and not an expert and the case has been sent to the District Forum by this Commission for recording the evidence of experts only. It appears that the complainant preferred to choose a strategy which was helpful to her. If the respondents Nos. 2 to 4, appeared as witnesses, in spite of being parties to the case, it is not understood why the complainant or her husband did not appear in the witness box to contradict the categorical assertions made by the said respondents in their counter as well as in their sworn testimony. Therefore, the resultant position is that the evidence given by these witnesses stands uncontradicted.

The first argument of the learned Counsel for the complainant was that no examination of the complainant was made by the respondent No. 2, Dr. Santha Warriar, when the former appeared before her on 3.2.1990. The said doctor has stated that whatever examination was necessary was made by her on that date and necessary particulars required for future M.T.P. were recorded in the notings dated 3.2.1990.

THE learned Counsel for the complainant argued that Ultra sonography ought to have been done by RW2 at the time of examination of the complainant on 3.2.1990 to determine if she was pregnant. He has referred to Exhibit ''A-9'' (referred to in the evidence as Exhibit A-10) which is an article by one M.Y. Rawal on "Role of Ultra sonography in M.T.P.". However, in the said article, it is also mentioned that normally termination procedures are not carried out under Ultrasound guidance. Of course it is also mentioned in that article that in what cases Ultra sonography can be useful but here we are concerned with Medical Termination of Pregnancy and for that purpose Ultra sonography has not been regarded as an essential test. As noticed earlier the complainant had approached Dr. Santha Warriar with a positive report about pregnancy and to consult about termination. THE Doctor conducted clinical and per vaginal examination and found that the pregnancy of the complainant was 6 to 8 weeks old. The learned Counsel for the complainant also placed reliance upon Exhibit'' A-11'', which is an article about "Ultrasonogram in Obstetrics" and argued that in cases of ectopic pregnancy, which the complainant was having, according to respondents, the role of Ultrasonogram is useful in confirming or excluding an intrauterine pregnancy. However, in the same article it is further remarked that Ultrasound is associated with significant false positive and false negative data in diagnosing ectopic pregnancy. RW1, Dr. Rajan has also stated that Ultrasonogram is not usually carried out for termination of pregnancy as this test unnecessarily burdens the patient with heavy costs. The said doctor has also stated that Ultrasound sometimes has harmful effects on the child also. Moreover, in the present case, there was no symptom to suspect that the complainant was having an ectopic pregnancy and that too in cervix. According to respondents, cervical pregnancy in early stages, is not easy to be diagnosed.

THE Counsel for the complainant argued that the complainant was a high risk patient for M.T.P. as she had earlier undergone a Caesarean Section. THEre is no doubt that the complainant was a high risk patient. However, the respondent No. 2, Dr. Santha Warriar, in her counter as well as in her statement has stated that she had explained all the possible risks and dangers to the complainant and her husband when they came on 3rd February, 1990 and fixed MTP for 10th January, 1990 so as to give time to the complainant and her husband to re-think about the dangers while going for M.T.P. THEre is no contradiction to her statement and we have no hesitation to accept her version as true. If the Hospital was interested in doing M.T.P. for the sake of money, as suggested by the learned Counsel for the complainant, the M.T.P. would not have been postponed to 10th February, 1990. THErefore, the argument of Counsel for the complainant that the possible risks were not explained by Dr. Santha Warriar to the complainant and her husband before deciding to perform M.T.P. has only to be rejected. Dr. Santha Warriar has stated that though the complainant was a high risk patient, M.T.P. had to be performed under Family Welfare Programme as the Hospital is an approved Hospital for this purpose. As earlier noticed consent forms have been removed by somebody from the Hospital records. Here we may deal with another argument advanced by the learned Counsel for the complainant. He argued that if the complainant had approached Dr. Santha Warriar for M.T.P. then the directions as laid down under Medical Termination of Pregnancy Act, 1971 and the Regulations made there under should have been observed by the said Doctor. According to him, a code number is given to identify such a person and intimation is to be given to the Chief Medical Officer of the District. From the respondents'' evidence it is clear that such procedure is not followed in Kerala State. Moreover, we have not been able to understand that after obtaining a positive test report about her pregnancy, what other motive the complainant had for approaching the above Doctor on 3rd February, 1990 if it was not for M.T.P. She submitted to termination of her pregnancy. It shows that she wanted M.T.P. It is only to suppress the fact that she wanted M.T.P., that she has deliberately not disclosed in the petition for what purpose she had visited the Hospital on 9th February, 1990. The next alleged negligence on the part of Dr. Santha Warriar pointed out is that she used lamineria tent for dilating cervix instead of dilapan. His contention was that the lamineria tent sometimes causes infection as is mentioned in some of the articles written by medical doctors and produced on the file. The question to be seen is whether for the dilatation of the cervix there is any prohibition about using lamineria tent. Exhibit B.2 is an article from a Book titled "Williams Obstetrics" (Sixteenth Edition) written by Jack A. Pritchard, M.D. and Paul C. Macdonald, M.D. For cervical dilatation they have described the method how lamineria tent is to be inserted inside the cervical canal. Exhibit B.3 is a chapter from a Book on "Clinical Obstetrics" by A.L. Mudaliar, M.D., LLD., D.SC, D.CL., (Oxon.) F.R.C.O.G., F.A.C.S., F.R.CP., Ed.(Hon.), and Mr. M.K. Krishna Menon, B.A., M.D., F.R.C.O.G., F.A.M.S. These Doctors have also referred to lamineria tent while referring to the subject "Medical Termination of Pregnancy". R.W.1 Dr. Rajan has also stated that he is using lamineria tent for dilatation of cervical canal. Even in Ex. A.2 which is an article written by Dr. G.I. Dhall there is mention about the use of lamineria tent for purposes of dilatation of cervix. This document has been produced by the complainant herself. Therefore, the use of the Lamineria Tent is one of the accepted standard procedures and it cannot be said that the use of lamineria tent by Dr. Santha Warriar upon the complainant constituted a negligent act. Of course, some doctors have also recommended dilapan for the purpose of dilatation of cervix. However, if a doctor prefers and adopts one of the approved methods for dilatation of cervix it cannot be said that he/she is negligent in the treatment of the patient. Moreover, in the present case, the grievance of the complainant is that her uterus has been removed by the alleged negligence of Dr. Santha Warriar. The use of lamineria tent is not proximate cause to the removal of the complainant''s uterus.

THE learned Counsel for the complainant next argued that the noting dated 9th February, 1990 in annexure'' A'' shows that since the previous day the complainant was having slight bleeding. According to the complainant while a patient is bleeding, insertion of lamineria tent is ''contraindicated. According to the statement of RW.1, Dr. Rajan if there is excessive bleeding only then the cause of bleeding is to be found out first. Otherwise in early pregnancy there is, sometimes, slight bleeding and it is not a symptom of threatened abortion and lamineria tent can be inserted.

THE learned Counsel for the complainant argued that after lamineria tent was inserted on the evening of 9th February, 1990, the complainant was allowed to go away from the Hospital and that she ought to have been treated as in-patient. Both R.W.1 Dr. Rajan R.W.2 Dr. Santha Warriar have stated that after lamineria tent is inserted the patient is not usually kept as in-patient unless there is excessive bleeding. THE argument of the learned Counsel for the complainant was that if the patient is allowed to go away, the tentcan cause performation of the uterus. In the present case, no such perforation was noticed, before starting the M.T.P. on the morning of 10th February, 1990. According to P.W.2. Santha Warriar there was no excessive bleeding. It is not the case of the complainant that when she came on the morning of 10th February, 1990 for M.T.P., she had excessive bleeding per vagina or she had felt any pain. Hence, there was no perforation of uterine wall by the lamineria tent. Learned Counsel for the complainant further argued that the tent should not be allowed to remain inside the cervix for more than 4 hours as by that time it causes sufficient dilatation. However, in view of extracts from various medical books produced by the parties and the statement of R.W.1 Dr. Rajan, learned Counsel for the complainant did not put much stress upon this argument.

Lengthly arguments (including written submissions) were advanced on behalf of the complainant to show that while removing the tent on 10th February, 1990, it might have been broken and the broken pieces might have caused injury to the cervical canal or the uterus. This argument is based on mere conjucture of surmise and we are unable to appreciate it particularly when R.W.2 Dr. Santha Warriar has convincingly stated that no such thing had actually happened.

LEARNED Counsel for the complainant argued that for doing M.T.P. in the first trimester pregnancy the two surgical methods employed are: 1. Suction evacuation/uterine aspiration 2. Dilatation and Currettage.

but during the last couple of decades suction evacuation is a method of choice in dealing with elective termination of Ist trimester pregnancy and this method has replaced D & C. method. Reliance was placed upon Ex. A-2 which is an article by Dr. G.I. Dhall upon the subject "Suction Evacuation and Dilatation and Currettage in First Trimester Medical Termination of Pregnancy". The said author has also written in that article "the most commonly used method of first trimester abortion is dilatation/currettage or more appropriately dilatation, evacuation and currettage. This is the traditional method of procuring first trimester abortion and has been largely replaced by suction evacuation". The author nowhere says that dilatation and currettage method for purposes of terminating the first trimester pregnancy is a prohibited one. According to the statement of R.W.1 Dr. Rajan and R.W.2 Dr. Santha Warriar, in Kerala the commonly used method is dilatation and evacuation/currettage. Therefore, the method adopted by Dr. Santha Warriar for doing M.T.P. on the complainant cannot in any sense be regarded as a negligent act. Now we come to the main dispute between the parties. The contention of the complainant is that it was a normal pregnancy and not a cervical pregnancy. This argument is based solely upon the fact that Dr. Mohan, Aneaesthstist in his notes about Diagnosis has remarked PPH - pregnancy at the previous scar. PPH means "Post-Mortem Haemorrhage" which means following a delivery. In the present case, there was no delivery. R.W.3, Dr. Somalatha has stated that when the uterus was opened, she saw the amniotic sac with a small foetus, and when Dr. Santha Warrior evacuated this product, the site of implantation was noticed at the upper cervical canal and at the isthmic area. R.W.4, Dr. C. Balachandran has stated that when the uterus was opened, his attention was drawn by Dr. Santha showing him the foetus in a sac with cervionic tissue presenting at the opening and when the tissue was removed it was noticed to be attached over the anterior wall of the uterus below the scar extending to the cervix. He has also stated that the site of implantation of tissue extended from the scar in the uterus to the upper part of the cervix. The scar means the scar opened by Dr. Santha Warriar at the site of the previous scar caused by earlier caesarean. Dr. Mohan appears to have made the remark in his noting on his own observation. In fact he must be really busy monitoring the vital signs of the patient who was in a critical condition which was fast deteriorating. As noticed earlier, the respondents wanted to examine Dr. Mohan but the complainant objected to that request. It cannot now be urged on behalf of the complainant that non-examination of Dr. Mohan in the witness-box is fatal to the respondent''s case. He was the best person to explain his notings.

LEARNED Counsel for the complainant argued that according to Ex. B-8 pregnancies involving cervix can be classified as follows: 1. Isthmico-cervical pregnancy - one in which a very low-lying placenta extends from above the cervix; 2. Pure cervical pregnancy - one that is fully contained within the cervical canal, and therefore, is feasible mainly in the early stages of pregnancy (i.e. it rarely reaches mid-term); 3. Cervico-isthmic pregnancy - one in which there is even more involvement of the corporal cavity;

He argued that Dr. Santha Warriar and Dr. Somalatha are not unanimous about describing the pregnancy of the complainant, and, therefore, it must be held that to hide their faults in the operation, these doctors have invented that the complainant had cervical pregnancy and that when in the course of operation there was excessive bleeding hysterectomy had to be done. R.W.2 Dr. Santha Warriar has described the pregnancy of the complainant as Cervico-isthemic one while R.W.3 Dr. Somalatha has named it as Isthmico-cervical. The above doctors were not asked if there was any difference in the nomenclature given by them. Both the doctors are unanimous in describing the site of the pregnancy of the complainant. Therefore, if R.W.2 and R.W.3 have given different names to the pregnancy of the complainant it cannot be concluded that it was a normal pregnancy. If there was normal pregnancy at the normal place, i.e., in the uterus, the bleeding would have stopped. When the implanted tropoblast or the placenta at full term gets separated from the uterine wall to which it is attached, bleeding into the uterus from the uterine blood vessels automatically results and the blood comes out through the vagina. As soon as the separation takes place, the uterus walls contract and the contraction automatically results in stopping or considerably diminishing the bleeding from the uterine blood vessels. If there was any perforation of uterus by an instrument as argued by the learned Counsel for the appellant, then the bleeding could have been stopped by suturing perforated site as is clear from the statements of R.W.1 to R.W.4. Therefore, there is nothing on the file from which it can be gathered that it was a case of normal pregnancy at a normal site. We have not been able to understand that if on account of some mishap the uterus was removed by respondent No. 2, Dr. Santha Warriar, then why she would invent a rare pregnancy like cervical pregnancy. Here we may reproduce the Laporotomy notes recorded by Dr., Santha Warriar: "While doing the Medical Termination of Pregnancy patient started bleeding profusely and signs of "internal bleeding" was present. So an exploratory laporolomy was done. There was plenty of blood in the peritoneal cavity. The bleeding was from the lateral end of the Lower Uterine segment. The Lower segment was opened and the Uterine cavity evacuated. The products was actually in the cervical canal perforating the lower segment. Since the bleeding was not controlled even after evacuation and suturing in the Lower segment total hysterectomy was done. Both the tubes and ovaries retained a small rent in the bladder was repaired by Dr. B .C. Abdomen closed in layers after protect laemostasis. 3 units of blood transfer at the time of surgery. Urine drained falley''s catheter continuously. Urine is clear output satisfactory".

LEARNED Counsel for the complainant argued that laporotomy notes are an after thought and were not recorded immediately after the operation. This argument is based upon the fact that in it was not mentioned that the products of pregnancy has attached to the wall of the upper part of the cervical canal and that it had grown into the lower uterine segment. This omission was put to R.W.2 Dr. Santha Warriar and she has replied as follows: "I have not mentioned that part in the laporotomy because the noting (page-51) in the laporotomy was written soon after the operation and the part noted in the laporotomy "that the products was actually in the cervical canal perforating the lower segment" means that there was adhesion of the product to the lower uterine scar. In normal time the length of the cervix is one inch".

We do not find any material omission of facts in the notings about laporotomy. It may be mentioned that at another place the said Doctor has stated in her statement that Annexure ''A'' (notings about laporotomy) was written by her for her future reference regarding the patient and so certain things would be abbreviated, elaborated and certain things would be omitted. It is not possible for us to hold that the laporotomy notes were fabricated. At that time Dr. Santha Warriar could not anticipate that at a subsequent stage she would be charged with negligence. At the time of discharge from the Hospital the complainant was given the summary of the ''Diagnosis'' and ''treatment''. All the relevant facts are mentioned therein. Even after the operation, the complainant visited the Hospital thrice for check-up. If she had lost faith in the Doctors of that Hospital, she would not have visited it. It may also be mentioned here that later on her son had fallen ill and he was also got treated in that Hospital.

NOW we come to the subject of cervical pregnancy. Marco Antonio Pelosi in his article (Ex. B-8) on cervical pregnancy has remarked: "In 1953 Baptisti commented that most obstetricians would never see a cervical pregnancy and that those did would wish they had not. His statement is nearly as true now as it was then". He has further remarked: "Cervical pregnancies that extend beyond 6- 8 weeks present a more complex picture. Because a placental plate does not form, as it does in a corpus pregnancy, there is deep penetration of the chorionic villi into the fibromuscular layer of the cervix, and resultant edema, necrosis, haemorrhage, and round cell infiltration. By this point, a type of placenta accreta has developed in which there is no line of physiologic cleavage between placental and cervical tissues".

In the book "William''s Obstetrics" (Supra) it is remarked: "The treatment of cervical pregnancy"- The treatment of cervical pregnancy is surgical; the condition usually requires an abdominal hysterectomy. Since a true cervical pregnancy is incompatible with a viable fetus, be abnormal implantation will usually produce symptoms within the first trimester. Although conservative evacuation of a very early cervical pregnancy has been accomplished by a skillful dilatation and currettage, as documented by Whittle, the procedure is complicated by profuse haemorrhage, which usually necessitates an abdominal hysterectomy. Mortimer recommends that conservative measures should never be attempted if the gestation is beyond 8 weeks".

In the book "Gynaecology", an extract of which has been marked as Ex. B-9, in the article "Ectopic Pregnancy, Cervical Pregnancy" it is remarked: "An extremely rare form of ectopic pregnancy, cervical pregnancy produces profuse vaginal bleeding without associated crampping pain. The differential diagnosis is difficult because the physician initially is apt to suspect a cervical carcinoma or either an incomplete or septic abortion. The combination of necrotic tissue, marked vascularity, and, occasionally, secondary infection adds to the problem of differential diagnosis. Initial attempts can be made to stop the haemorrhage by local removal of the products of conception if hemostasis is obtained, this is adequate treatment. Because of the depth of tropoblastic invasion, however, major blood vessels are often involved, and hysterectomy may be necessary. Bilateral internal iliac artery ligation has been recommended as a possible substitute, because this procedure preserves reproductive function".

NOW we come to the case of the complainant and it will be best to reproduce here para No. 9 of the additional counter affidavit submitted by respondent No. 2, in which details of the operation are given: "9. In the case of the petitioner the actual site of implantation was at the top-most portion of the cervix and the sac and foetus was in the lowermost portion of the uterus. This is an extremely rare condition. When the products were attempted to be removed with the ovum Forceps and they were getting separated from the implantation site, very profuse bleeding started, both vaginally and internally. In view of the critical condition into which the petitioner was falling, her abdomen had to be opened to identify the site and nature of the bleeding. It was then seen that the bleeding was from the lateral end of the lower uterine segment. When the lower uterine segment was opened along the old scar of the Caesarean operation, the sac and the foetus was at the opening itself and on the same being evacuated it was seen that the actual site of implantation was at the top portion of the cervix. The lower-most part of the uterine segment is called the isthmus and since the pregnancy was partly in the lower-most part of the uterus this can be called a cervico-isthmic pregnancy. Since the bleeding could not be controlled even by evacuation of the products and since the patient was sinking, an emergency hysterectomy was performed".

This part of the case is supported by her in the witness box as well as by R.W.3, Dr. Somalatha and R.W.4, Dr. Balachandran. We are of the opinion that in the circumstances found at the time of laporotomy, hysterectomy had to be performed upon the complainant and not on account of any negligence in the diagnosis and treatment. In case of emergency, the operating doctor has wider discretion about the treatment. It was also argued on behalf of the complainant that there was insufficient staff at the time of treatment of the patient. The complainant had gone to the Hospital for M.T.P; only. Dr. Santha Warriar was competent enough to perform it alone. However, when complication arose, she called in Dr. Somalatha and Dr. Balachandran to assist her.

It has further urged on behalf of the complainant that by ligating the internal iliac artery the bleeding could have been stopped. Dr. Balachandran has given an explanation for not ligating the internal iliac artery. He has stated: "Ligation of the internal iliac artery alone could not have stopped the bleeding, because the uterus is also supplied by the ovarian vessels. Internal iliac artery is in close relation with ureter and when the B.P. is low, identification and ligation of this particular artery can cause injury to the ureter. Identification would have taken more time also. Condition of patient was deteriorating".

LASTLY it was argued that practically all text books and the manual of M.T.P. published by the Federation of Obstetric and Gynaecological Societies of India state that if hysterectomy is done, the products should invariably be sent for Histopathological examination. In the present case the complaint is about the removal of the uterus of the complainant and not about not sending the products for Histopathological examination. Moreover, Dr. Santha Warriar has given a proper explanation for not sending the products for Histopathological examination. She stated : "It was clinically evident that the product was of a normal pregnancy situated at an abnormal site. The uterus was also found normal without any signs of tumour or any other pathological conditions. The site of implantation of the pregnancy was clearly seen at the laporotomy and even after removing the uterus and finishing the surgery we cut open the uterus and finishing the surgery we cut open the uterus, just to make sure whether there is any other disease. There was no other disease".

Products are sent for Histopathological examination only if any malignancy is suspected. Both R.W.2 and R.W.4 have stated that as the complainant is very young with only one child, they did not consider it necessary to send the products for Histopathological examination as after careful examination of the internal organs, they did not find any reason to suspect cervical cancer in the patient. In the light of the above discussions, we have unhesitatingly come to the conclusion that in the present case the Doctors concerned acted with due care, circumspection and professional skill and competence and there was no negligence of any kind on the part of any one of them. In fact it was only to the prompt and efficient surgical treatment administered to the patient in the emergent situation on the discovery of the cervical pregnancy that her life was saved.

BEFORE parting with this Order we may mention here that, after the oral evidence had been recorded by the District Forum, Ernakulam, the complainant had filed an application before us, praying that she may be allowed to adduce expert evidence and to take on record the affidavit of Dr. G. Kinra. Associate Professor of A.I.I.M.S. in the Department of Gynaecology and Obstetrics. However, that application was not pressed at the time of arguments and a written submission was filed to that effect. For the foregoing reasons, we dismiss the present petition with costs which we asses at Rs. 3,000/-. Petition dismissed.