RAJIYA BEGUM Versus DR. AMITABH SINGHAL.
Decided by Hon’ble DR. S.M. KANTIKARPRESIDING MEMBER
At the Hon’ble NCDRC, New Delhi on 24.11.2022
FACTS: On 02.10.1993 the Complainant Rajiya Begum was operated by Dr. Amitabh Singhal in his Swaroop Nursing Home, it was alleged that, after 10 days, on 11.10.1993 the stitches were removed and she was discharged without any advice, that on the same day, during sleep in the night, her abdomen got busted suddenly, the stitches got opened and intestine came out, that she suffered severe abdominal pain and even water came out when she drunk water. Therefore, on the next day morning immediately she was taken to OP nursing home, stitches were again with sedation and discharged after sometime, that dressing was done courteously for one month, but pain did not subside till 22.01.1994, that OP just kept on assuring, the pain would subside soon, that she visited the Government hospital where in another surgery for incisional hernia was advised, but due to heavy expenses and paucity of funds she could not get operated, she is facing difficulty in walking, sitting on the floor, and that She had to use abdominal belt continuously.
ARGUMENTS ON FACTS: The learned Counsel for Petitioner/Complainant argued that after hysterectomy operation the patient was kept in hospital unnecessarily for 10 days, that OP did not maintain day-today record of surgical wound status, it was the reluctance of OP, that the Consent was defective and it was not an informed consent, that the OP did not inform about possible complications after surgery relying upon a book “Law of Medical Negligence & Compensation” by Dr. R.K. Bag and ‘Medical Negligence’ by Michael J. It was further submitted that the OP failed to give proper instructions at the time of discharge about “do’s and don’ts”. Though the patient was under continuous follow up till 22.01.1994, OP failed to diagnose Incisional hernia which was diagnosed on 24.01.1994 at the District Hospital which clearly indicates the negligence and unfair trade practice of the OP during post-operative care. The learned Counsel for the OP/Respondent submitted that Dr. Amitabh Singhal was a qualified and experienced doctor practicing as a Surgeon for last 36 years in Muzaffarnagar, that OP performed abdominal hysterectomy, there was no question to interfere with the abdominal organs, that if the stitches opened up in the night, the patient could not have waited till next day afternoon to visit the hospital. The complainant was overweight, obese and she herself informed that her stitches opened up when she was relieving herself in the morning. It was due to the abdominal pressure coupled with her weight the stiches were loosened or broken.
HELD: It is evident that the patient was suffering from heavy menstrual cycles due to fibroid uterus. Her hysterectomy operation was performed on 02.10.1993 and thereafter she suffered on 12.10.1993 noticed stitches of operative wound were opened. The OP under local anaesthesia put the fresh stitches and discharged her on the same day. The OP then removed the stitches once they were dry. The patient did not complain at that time. She was under follow-up till 22.01.1994 without any complaint of incisional hernia. Due to her physical status she was not recommended to perform Namaz and she was advised to use abdominal binder. Thereafter, she did not visit the OP. The mode of treatment and approach of the OP was as per the accepted standard of practice. I do not find any fault in performing the hysterectomy operation. The post-operative (after 10 days) the gaping of surgical wound is known complication in the Obese patient and due to increased abdominal pressure at the time of passing stool or urine. Therefore, opening of stitches or bust abdomen shall not be construed as medical negligence. It is evident that the patient approached Government hospital wherein she was advised for operation for correction of incisional hernia but she did not opt for it, which in my view it was her carelessness. Therefore, the incisional hernia remained throughout her life, for which the OP was not liable. I would like to rely upon the observations made by Hon’ble Supreme Court. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam [3], the Hon’ble Supreme Court held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. The Hon’ble Court held as under:
“37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1: 2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.”
I do not find any error apparent or material irregularity in the Orders passed by the District Forum (majority) and the State Commission. Same are affirmed. The Revision Petition is dismissed as devoid of any merit. However, there shall be no orders as to the costs.
