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2008 DIGILAW 1265 (MP)

Zeba Hamid (Mrs. ) v. Hajela Hospital

2008-10-31

PRAMILA S.KUMAR, S.K.KULSHRESHTHA

body2008
JUDGMENT : Asper S.K. Kulshreshtha , J. (President ) : - Thesetwo appeals, one by the complainant and the other by Hajela Hospital ,are directed against the order dated 17-4-2006 passed by the District Forum, Bhopal in Complaint Case No. 543/2005. 2.While the facts of the case stated from one side are that the complainant/ Zeba Hamid had been unnecessarilysubjected to the unwarranted medical treatment and caused permanent harm, theHospital maintains that the patient was properly treated and all actions weretaken for her benefit inasmuch as, though a case of infertility, she hadconceived and has a child aged 2 years. 3.Learned Counsel for the complainant has pointed out that since Zeba Hamid , a case of primaryinfertility, contacted the opposite party- Hajela Hospital and the doctors insisted that she should undergo diagnosticlaparoscopy and hysteroscopy for which a sum of Rs .3100/- was charged on 29-9-2004, on 30th September, 2004 she started bleedingfrom the place the operation was performed. This, according to the surgeon,necessitated ovarian drilling for which a bill of Rs .9000/- was given to the husband of the complainant though his consent was notobtained for this operation in writing. It has also been pointed out thatnegligence of the doctors was writ large as they have also removed thefallopian tube for which there was no reason. 4.Per contra Dr. Anoop Hajela has pointed out that on 25-9-2004 the complainant- Zeba Hamid was examined as a High Risk case of primary infertility and test was normal. On29th and 30th September, 2004 she was alright and it was only in the night of30th September, 2004 when on finding the ovaries were causing hindrance, afterproper administration of treatment and surgical intervention, the fallopiantube was removed. The District Forum, on appraisal of the evidence brought onrecord by the parties, awarded a compensation of Rs .1 ,00,000 /- to the complainant and also a sum of Rs . 47,790/-the amount of bill, which has been encashed . In addition, a sum of Rs .2000/-has been awarded to her as costs. 5.The bone of contention between the rival parties is that while the learnedCounsel for the appellant-complainant Shri Joshiportrays the act of Hajela Hospital and its doctors as whollyunwarranted and irrational and sheer negligence, Dr. Hajela justified his action. 47,790/-the amount of bill, which has been encashed . In addition, a sum of Rs .2000/-has been awarded to her as costs. 5.The bone of contention between the rival parties is that while the learnedCounsel for the appellant-complainant Shri Joshiportrays the act of Hajela Hospital and its doctors as whollyunwarranted and irrational and sheer negligence, Dr. Hajela justified his action. 6.While, it is true that for every major operation the doctor should obtain theconsent of the patient and if it is not possible to obtain the consent of thepatient, it should be obtained from some close relative and responsible person,it is equally true that when a person is in the operation theatre and it isfound that immediate action is necessary, the doctors need not to go out of theoperation theatre only for obtaining consent. However, in the present case, thedoctors ought to have obtained the consent from the husband of the complainantby sending someone from the operation theatre as circumstances constituting theexcepted class were not present. 7.Much stress has been laid by the learned Counsel for the complainant on thedecision of the Supreme Court in Samira Kohli Vs . Prabha Manchanda (Dr.) and another, I (2008) CPJ 56 (SC).Our attention has been invited to Paragraph 17 of the report which reads as follows : - "Itis quite possible that if the patient been conscious, and informed about theneed for the additional procedure, the patient might have agreed to it. It maybe that the additional procedure is beneficial and in the interests of thepatient. It may be that postponement of the additional procedure (say removalof an organ) may require another surgery, whereas removal of the affected organduring the initial diagnostic or exploratory surgery, would save the patient from the pain and cost of a second operation. Howsoever,practical or convenient the reasons may be, they are not relevant. What isrelevant and of importance is the inviolable nature of the patient's right inregard to his body and his right to decide whether he should undergo the particulartreatment or surgery or not. Howsoever,practical or convenient the reasons may be, they are not relevant. What isrelevant and of importance is the inviolable nature of the patient's right inregard to his body and his right to decide whether he should undergo the particulartreatment or surgery or not. Therefore, at the risk of repetition, we may addthat unless the unauthorized additional or further procedure is necessary inorder to save the life or preserve the health of the patient and it would beunreasonable (as contrasted from being merely inconvenient) to delay thefurther procedure until the patient regains consciousness and takes a decision,a doctor cannot perform such procedure without the consent of thepatient." Certainexceptions have however, been indicated in the Paragraph 19 of the report also. 8.On behalf of Hajela Hospital , literature has been filedwith regard to laparoscopic survey. It shows that the thorough laparoscopicsurvey will identify any adhesions, along with their extent and nature; revealthe presence of endometriosis, its extent, and other abdominal and pelviclesions, and permit assessment of the uterus, ovaries, and tubes. Theinformation yielded by the prior HSG and survey enables the surgeon on undertake reconstructive laparoscopic surgery. It also showsthat diagnostic laparascopy has become very importantin the assessment of female reproductive organs. The role of laparascopy is to define the status of fallopian tubes(morphology and functionality) in unexplained infertility and to diagnoseunexpected pathologies of the reproductive apparatus. It is necessary toperform these examinations very accurately and at the same time to minimize thetrauma. The surgeon should be prepared to treat the pathology encountered throughthe laparascope during the same operation. 9.After hearing learned Counsel for the parties and on perusal of the literatureavailable on record, we are of the opinion that in so far as the respondent No.1-Hajela Hospital was concerned and its doctors, they took every care inperforming the tests, except that they did not obtain permission from thehusband of the complainant. 9.After hearing learned Counsel for the parties and on perusal of the literatureavailable on record, we are of the opinion that in so far as the respondent No.1-Hajela Hospital was concerned and its doctors, they took every care inperforming the tests, except that they did not obtain permission from thehusband of the complainant. It is not a case where it was not possible toobtain consent of her husband and delay in the operation would have been fatal.Under these circumstances, though in the professional capacity, the doctors hadperformed the test in the prescribed manner and the ultimate result was alsofruitful to the complainant in that she conceived and later delivered a child,but in the facts and circumstances of the case, we are fortified in ourassessment, on account of the judgment referred to above and we feel thatthough the negligence is technical, indeed something which should beover-looked, the complainant should be compensated, though marginally. 10.In view of the above discussions, we are of the view that the complainant isnot entitled to any compensation much less Rs .1,00,000/-, the complainant is however, entitled to deduction in the amount ofbill as certain steps were capriciously taken, may be to her advantage, byreducing the bill from Rs . 47,1901- to Rs . 25,000/-. The respondent No. 1-Hajela Hospital shall however, pay the sum of Rs . 2,000/- as awardedby the District Forum for costs. 11.Consequently both these appeals are partly allowed in the terms indicatedabove. There shall be no costs of these appeals. 12.This order be retained in Appeal No. 1008/2006 and acopy be placed in the record of Appeal No. 1028/06.