Holding

The respondents were not negligent in diagnosis, treatment, or procedural conduct, and the hysterectomy was a necessary and reasonable measure; the appeal is dismissed.

Summary

The appellant, Vinitha Ashok, filed a consumer complaint alleging medical negligence after losing her uterus during a termination of pregnancy at Lakshmi Hospital. She claimed the doctors performed an unnecessary MTP without ultrasonography, used an improper cervical dilatation device, and failed to send the uterus for histopathology, leading to a total hysterectomy. The court examined the medical evidence, noting that the appellant had no symptoms suggesting a cervical ectopic pregnancy and that the doctors could not have diagnosed it without invasive procedures. It held that the profuse bleeding during the procedure necessitated an exploratory laparotomy and ultimately hysterectomy, which was the only viable remedy. The court found no negligence in the lack of ultrasonography, the use of a lamineria tent, or the omission of histopathology, and concluded that the hospital complied with the Medical Termination of Pregnancy Act regarding consent forms. Consequently, the appeal was dismissed.

Issues considered

The adequacy of diagnosis of cervical ectopic pregnancy without ultrasonography
Whether failure to perform ultrasonography constitutes negligence
Whether the use of lamineria tent instead of dilapan for cervical dilatation is negligent
Whether failure to send the uterus and products of conception for histopathological examination amounts to negligence
Whether the hospital breached its duties under the Medical Termination of Pregnancy Act by not retaining consent forms
Whether the total hysterectomy performed was a reasonable and necessary medical response

Legislation cited

Consumer Protection Act, 1986s. 21, s. 2(g)
Medical Termination of Pregnancy Act, 1971s. 4

Subjects

medical negligencecervical ectopic pregnancyhysterectomyultrasonographymedical termination of pregnancyconsumer protection actstandard of careconsent forms

Judgment

A SMT. VINITHA ASHOK
v.
LAKSHMI HOSPITAL AND ORS.
,..
SEPTEMBER 25, 2001

B . [S. RAJENDRA BABU AND K.G. BALAKRISHNAN, JJ.]

Consumer Protection Act, 1986--,-Sections 2(g) and 21.

Medical Negligence-Standard of care-Termination of cervical
pregnancy~Operation resulting in removal of uterus-Complaint filed
for compensation against the Hospital and Doctors for removal of uterus-
Dismissed by the National Commission-On appeal, held not negligent in
respect of diagnosis or the treatment-Peiformance of hysterectomy was the
only solution on account ofprofuse bleeding-Medical Termination ofPregnancy
Act, 1971.
D
Appellant lost her uterus consequent upon an ectopic pregnancy in
the cervical canal. Complaint was filed before the National Commission
for compensation on ground of negligence on the part of respondents.
Commission dismissed the claim on the ground that the appellant failed to
prove negligence on the part of respondents. Hence the present appeal.
E
Appellant contended that as she had a normal pregnancy, medical
termination of pregnancy (MTP) was unnecessary. More so , MTP was
conducted by the respondents without carrying out ultrasonogram; it was
done negligently leading to excessive bleeding necessitating hysterectomy.
F Further the products of conception were not sent for histopathological
examination. Appellant further alleged that respondents had used lamineria
tent for dilating cervix instead of dilapan.

On behalf of respondents, it was contended that there was absolutely
no negligence on their part.
G
Dismissing the appeal, the Court

HELD : 1. The appellant did not have any history from which
presence of cervical pregnancy could have been suspected. The appellant
H had not complained of any significant bleeding or painless bleeding or
292
VINITHA ASHOK v. LAKSHMI HOSPITAL 293
bleeding with pain at any time. In the circumstances, the doctors could not A
have found that the appellant had ectopic pregnancy and therefore they
cannot be held guilty of any negligence either in respect of diagnosis or in
the matter of treatment administered. [301-F; G]

2. The evidence of doctors with contemporaneous record states that
the appellant had ectopic pregnancy in the cervical canal. While doing the· B
MTP the appellant started bleeding profusely and signs of internal bleeding
was present and so an exploratory laporotomy was done. Since the bleeding
was not controlled even after evacuation and suturing the lower segment,
total hysterectomy was done which was the only remedy. [302-B-D]

3.1. For hysterectomy the performance of the test of ultra sonogram
c
was not required as it would not have improved the matter at all. At best,
ultra sonogram would have disclosed that uterus was empty and that fact
does not establish as to where the pregnancy is located. [303-C; D]

3.2. In the instant case, medical literature and expert evidence states D
that ultrasonography identifies the ectopic pregnancy whereas some text
books state that ultra sonography does not establish ectopic pregnancy.
However, when two views even if possible, the general practice in the area
in which the respondents practised such procedure was not followed and
therefore no negligence can be attributed to the respondents on not E
performing ultrasonography. [305-D; E]

4. The use of lamineria tent in dialatation of cervix is one of the
accepted standard procedures instead of dilapan and is a commonly used
method in the area. Further even if there is difference of opinion amongst
the experts on the 'Suction Evacuation and Dilatation & Currettage in F
First Trimester MTP' procedures adopted by a doctor, the use of procedure
commonly in practice in an area by respondent No. 2 cannot constitute a
negligent act. [303-F; H; 304-C; D]

5. Failure to send the uterus and the products of conception after
surgery for histopathological examination did not result in any negligence G
on the part of the respondents in the course of the surgical procedure
adopted. Further if there was a suspicion of cancer, there would have been
some manifestation of the same and, in such a circumstance
' histopathological examination would have been done to rule out the
possibility of cancer, whereas there was no complaint of any kind of cancer H
294 SUPREME COURT REPORTS (2001] SUPP. 3 S.C.R.
A nor was there any such visible proof of the same. [306-D; E]
6.1. Regulation 4 of the Medical Termination of Pregnancy Act, 1971
provides that it is incumbent on the part of the doctor to get the consent
forms signed and the hospital is responsible to keep them in a cover which
is mostly secret. [305-G; H]
B
6.2. In the instant case the records had been taken away by the
appellant and her advisers on her behalf and zerox copies of the same were
available with them which were produced as exhibits alongwith the
complaint made to the commission. In those circumstances, the inference
has ~een rightly drawn that the appellant or someone else on her behalf
c must have caused disappearance of the consent forms and, therefore, the
appellant cannot make any grievance in that regard. [306-A_; B]
• 7. A doctor will be liable for negligence in respect of diagnosis and
treatment in spite of a body of professional opinion approving his conduct
where it has not been established to the court's satisfaction that such opinion
D relied on is reasonable or responsible. If it can be demonstrated that the
professional opinion is not capable of withstanding the logical analysis the
court would be entitled to hold that the body of opinion is not reasonable or
responsible. But the instant case does not warrant such a conclusion since it
is implicit in the court's view that the course adopted by respondent No. 2, as
reasonable and although the risk involved might have called for further
E.
investigation, the doctor's view cannot be dismissed. [309-C-E]
Achutrao Haribhau Khodwa v. State of Maharashtra & Ors., [1996] 2
SCC 634; A.S. Mittal v. State of U.P., [1989] 3 SCC 223 and Laxman
Balakrishnan Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, [1969] 1 SCR 206,
F referred to.
Rogers v. Whitaker, (1992) 109 ALR 625; Bolitho (administratrix of the
estate of Bolitho (deceased) v. City. and Hackney Health Authority, (1997) 4
All ER 771; Sidaway · v. Board of Governors of Bathlem Royal Hospital,
(1985) 1 All ER 643, referred to.
G Clark v. Maclennan & Anr., (1983) l All ER 416 and Cassidy v.
Ministry of Health, (1951) 2 KB 343, held inapplicable.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2977of1992.

From the Judgment and Order dated 8.5.92 of the National Consumer ,
H Disputes Redressal Commission, New Delhi in O.P. No. 11 of 1991.
VINITHA ASHOK v. LAKSHMI HOSPITAL [RAJENDRA BABU, J.] 295
T.R.G. Wariyar, A.S. Nambiar, R. Sathish, K.N. Madhusudan, Ms. Anne A·
Mathew, R. Ramdas, P.K. Manohar, G. Prakash, Ms. Beena Prakash, A.P. ·
Jyothish and M.T. George for the appearing parties.

The Judgment of the Court was delivered by

RAJENDRA BABU, J. [l] This is an unfortunate case of a woman B
losing her uterus - vital organ of regeneration - consequent upon an ectopic
pregnancy in the cervical canal, which reason is seriously challenged, but
denied equally seriously by the other side.

Appe1lant before us filed a complaint before the National Consumer C
Disputes Redressal Commission, New Delhi [hereinafter referred to 'the
Commission'] for compensation on the ground of negligence on the part of
respondents in the matter of removal of her uterus. The Commission held that
the appellant has not proved negligence on the part of the respondents and
dismissed the claim. Hence, this first appeal under Section 21 of the Consumer
Protection Act, 1986. The appellant claimed compensation in a sum of Rs. 15 D
lakhs for loss of uterus with no chance of future pregnancy and mental
disturbance or depression leading to disharmony and tension in the family.

[2] Facts leading to the said complaint are as follows:

The appellant gave birth to a son on 6.6.1989 after caesarean operation. E
On or about 3.2.1990 having suspected that she was pregnant again, she and
· her husband went to Lakshmi Hospital for consultation. The appellant was
examined by Dr. Santha Warriar, respondent No. 2. On examination, respondent
No. 2 informed the appellant that she was pregnant and it was decided to
terminate the pregnancy for which 10.2.1990 was fixed. On 9.2.1990 lamineria F
tent was inserted when the appellant went to the Hospital. On 10.2.1990 the
appellant, her husband and her sister-in-law went to the Hospital at about 8.30
a.m. Dr. Santha Warriar, respondent No. 2, took the appellant to the labour
room. At about 10 O'clock Dr. Somalatha, respondent No. 3, informed the
appellant's husband that the appellant was bleeding profusely and therefore,
G
they have decided to conduct an operation. She also informed the appellant's
husband that the appellant was in a very syrious condition and it was better to
inform her near relatives. At about 4 O'clock the operation was over and the
appellant's relatives were informed that she was better but under sedation. Dr.
Santha Warriar informed the appellant's husband that it was a case of Cervical
Pregnancy and her uterus had been removed. The appellant was discharged H
296 SUPREME COURT REPORTS (2001) SUPP. 3 S.C.R.
A .from the Hospital on 22.2.1990.

[3] The appellant complained that respondents hacJ not acted with due
care and caution required of medical professionals in diagnosing the problem,
in taking care to prevent the problem, in the performance of their duties and
lack of necessary facilities and infrastructure at the Hospital. The appellant
B pleaded that the Dilatation & Currettage (D & C) procedure was unnecessarily
done on her which led to other problems resulting in loss of uterus at a very
young age.

[4] This complaint is resisted by the respondents by contending that they
c have not been negligent to any extent either in diagnosing the appellant's
condition or in administering the required treatment; that the appellant herself
approached the respondents for termination of pregnancy because she has a
small son aged eight months who was born after a caesarean section; that the
appellant was having a Cervical Pregnancy extending to the lower segment of
her uterus which is very complicated and rare type of pregnancy which cannot
D be diagnosed by clinical or vaginal examination particularly in the early weeks
of pregnancy; that Hysterectomy is a recommended and established procedure
for tackling excessive bleeding in the case of Cervical Pregnancy and in the
case of the appellant, Hysterectomy had to be resorted to save her life when
excessive bleeding started; that such bleeding was not on account of any
E negligence in the diagnosis or on account of any faulty procedure adopted in
the course of surgery.

[5] The Commission analysed the pleadings and evidence placed before
it with reference to various decisions on the matter that were cited in the course
of the arguments. The Ccmmission found that the allegation of the appellant
F that she had gone to the Lakshmi Hospital, respondent No. 1, only to consult
about the suspected pregnancy is false because there were some notings in
which it had been found that the appellant had got her pregnancy test done in
some other private clinic which showed it was a positive one. The Commission
concluded that the appellant must have consulted the second respondent about
G termination of the pregnancy as her son by the previous pregnancy was only
about 8 months old; that she was breast feeding him; and that she had been
advised to meet the doctor on 10.2.1990. It was not clear as to why the
appellant went to the Hospital on 9.2.1990 but the notings in the documents
produced before the Commission indicated that 9.2.1990 was fixed for Tent
Insertion. In the notings dated 3.2.1990 facts have been noted that the earlier
H
VINITHA ASHOK v. LAKSHMI HOSPITAL [RAJENDRA BABU, J.] 297
delivery was by a caesarean section and Medical Termination of Pregnancy A
(hereinafter abbreviated as 'MTP'] was fixed for 10.2.1990 and there were
notings about clinical and per vagina examination made. Therefore, the
Commission concluded that the allegation that the second respondent without
proper examination presumed that it was a case of termination of pregnancy
is incorrect. The appellant had produced certain documents before the
B
Commission which should have been normally in the custody of the respondents
and such notings made in the records are not handed over to patients. Therefore,
the appellant or her advisors must have managed to remove some of the papers
from her case file. The Commission also noticed that respondent Nos. 2 to 4
appeared in the witness box and they were subjected to lengthy severe cross-
examination. Neither the appellant nor her husband appeared in the witness box C
to give any testimony in support of their version put forth in the complaint. The
Commission did not attach any importance to the non-examination of Dr.
Mohan, respondent No. 5, who was an Anesthesiologist in the case, who had
also made notings in the records of the hospital on which reliance was placed
by the appellant in support of her case that she had a normal pregnancy. D
[6] After examining the evidence and text books with reference to the
details of the operation set out in the additional counter affidavit dated 3 .2.1992
submitted by respondent No. 2, the Commission further held that in the
circumstances arising at the time of papparotomy, hysterectomy had to be
performed upon the appellant and not on account of any negligence in the E
diagnosis and treatment and in case of emergency the operating doctor has
wider discretion about the treatment. On that basis, the Commission came to
the conclusion that the respondent acted with due care, circumspection and
professional skill and competence and there was no negligence of any kind on
their part in any manner.
F
[7] Before us, the learned counsel for the appellant addressed two lines
of argument - firstly, that the appellant had a normal pregnancy and MTP was
unnecessary and secondly, without proper diagnosis by ultrasonogram, the
respondents conducted MTP, which in fact was done negligently leading ~o
excessive bleeding necessitating hysterectomy but if proper care had been G
taken this extreme step of removal of uterus could have been avoided. His
further complaint is that the products of conception not sent for histopathological
examination to confirm the diagnosis and for future follow up.

[8] On 3.2.1990, the appellant had approached respondent No. 2 with a
positive report about her pregnancy and to consult about termination of the H
298 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A same. After having conducted clinical and per vaginal examination respondent
No. 2 found that the pregnancy of the appellant was 6 to 8 weeks old. In this
context, reference was also made to article by M.Y.Rawal on "Role of USG in
MTP" and another article about Ultrasonogram in Obstetrics", which indicates
that the role of Ultrasonogram is useful in confirming or excluding an intrauterine
B pregnancy but it was noticed that Ultrasound is associated with significant false
positive and false negative data in diagnosing ectopic pregnancy. RW 1, Dr.
Rajan had also stated that test of Ultrasonogram is not usually carried out for
termination of pregnancy as this test unnecessarily burdens the patient with
heavy costs. He also stated that Ultrasound sometimes has harmful effects on
the child also. The appellant did not have any symptom to suspect that she was
c having an ectopic pregnancy and that too in cervix. He deposed that cervical
pregnancy in early stages is not easy to be diagnosed.

[9] The learned counsel for th~ respondents submitted that what had been
done in the case of the appellant by the respondents was the existing practice
D and, therefore, they cannot be held to be liable being negligen~ for not doing
Ultrasound test; that there was no general practice anywhere in Kerala to do
Ultrasound in MTP case; that normal procedure was adopted according to the
guid~lines issued by the Central Government. He, therefore, submitted that
there is absolutely no negligence on the part of the respondents at all and the
E finding recorded by the Commission is justified and that all the findings
recorded by the Commission are c..:impletely against the appellant.

[10) The stand of the respondents is that it is impossible by any kind of
test to detect the Cervical Pregnancy caused by the fertilised ovum getting
attached to some point in the cervical canal and start growing from there and
F
ectopic pregnancy is at a site that is not designed either to receive the concepts
or to permit it to develop.

In 'the Principles and Practice of Ultrasonography in Obstetri~s and
Gynaecology' at page 412, it is noticed that the rarest types of ectopic pregnancy
G are cervical and ovarian and because of their rarity these types of ectopic
pregnancy are usually not prospectively diagnosed. In 'Gynaecology' by David
N. Danforth dealing with this topic, it is stated therein that in about 5 to 10%
the diagnosis can be made readily if the uterine cavity is empty and in other
cases a cystic or complex mass is noted in one of the adenexal areas or in the
H culdesac. None of these indications were present in the appellant's case. It is
VINITHA ASHOK v. LAKSHMI HOSPITAL [RAJENDRA BABU, J.] 299

stated that in majority of women clinically suspect of having an ectopic A
pregnancy, however, the only ultrasonic finding is an empty uterine cavity and
in such cases, if clinical exigencies permit, additional evaluation is necessary
as indicated therein. The recommended use of Ultrasound as an essential
adjunct is in certain cases as indicated therein, but it does not include the
detection of ectopic pregnancies. In 'Clinical Obstetrics' by Mudaliar and B
Menon, the authors state that perhaps in certain instances to diagnose ectopic
pregnancy and incomplete abortion and Ultrasound is normally applied above
the abdomen and it may now be designated as Transabdominal sonography. A
different type called Trans Vaginal Sonography is only a recent development,
which gives better results in Gynaecology. It is stated by the respondents that C
this facility was not available anywhere in Kerala not even in medical colleges
and this is spoken to by the expert witnesses.

..- [11] Following medical authorities were also cited on behalf of the
respondents to show the characteristics of a cervical pregnancy:

(a) Linders Operative Gynaecology, 6th Edition by Richard F
Mattingly, it was observed that 'the treatment of cervical pregnancy is surgical
D

and the condition usually requires an abdominal hysterectomy'.

(b) 'Cervical Pregnancy' by Macro Antonio Peloci, Vol. IV, it was E
noticed that "most Obstetricians would never see a cervical pregnancy and that
those who did would wish that they had not. This st;itement is nearly as true
now as it was then".

'The longer a cervical pregnancy continues, the greater the depth of
penetration and the degree of erosion and perforation. The pregnancy itself
F
eventually terminates in one of two ways. Often there is erosion of a large
vessel with consequent bleeding, separation and expulsion of the conceptus
through the external os. Alternatively, the products of conception will rupture
into the vagine, the parameterium or the peritonial cavity through the thinning
cervical wall.' G

'The clinical signs of a cervical gestation generally become evident in
the first weeks of pregnancy and resemble those of a threatened uterine abortion.
However, cervical pregnancy seldom is diagnosed correctly prior to surgery.
This is due in part to the rarity of the condition and to the rather 'soft' clinical H
300 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A features associated with it especially prior to haemorrhage'.

'Painless bleeding may be the most reliable way of differentiating a
cervical pregnancy from a threatened uterine abortion. This symptom should
also sound a warning signal to patients who request voluntary termination of
what is thought to be a normal pregnancy'.
B
Haemorrhage:- cervical pregnancies are some times discovered during
voluntary termination of a supposed normal pregnancy. More often spontaneous
bloody discharge is what prompts most of these patients to seek medical
attention. In about 50% of the cases reviewed by Resnick, blood tinged vaginal
c discharge or irregular bleeding was present 2 to 4 weeks after the patient missed
her first period. Such bleeding often becomes progressively more severe and
can result in more or Jess brisk haemorrhage once the ovum begins to separate
from the cervical wall or ruptures through it. Unless the gestation is very early,
spontaneous or induced abortion tends to bring on violent haemorrhage. Attempts
D at removing the placenta, which is usually accreta only augments the
haemorrhage potential. Average blood loss is put at 6.4 units. Cervical
pregnancies may also involve signs of intra peritonial bleeding if the gestation
has ruptured through the cervical wall. However, since the diagnosis is not
generally suspected, the origin of the haemorrhage may not be clear until
E laportomy.

Finally it was emphasised that the clinical course of patients with cervical
pregnancy can vary from a simple, uncomplicated abortion with minimal
bleeding to the so-called classic presentation of sudden massive haemorrhage,.
especially during surgical intervention. Hence, the extent and significance of
F
bleeding remains somewhat controversial particularly with respect to diagnosis.
Paalman and Mc Elin suggested that instances of torrential bleeding are probably
associated with the cervicoisthmic variety of placentation, which entails greater
involvement.'

G (c) Gynaecology by Vadid N. Danforth and Orthers therein it is
noticed as follows :
.t
"An ectopic pregnancy is a pregnancy implanted outside the uterine
cavity, ie., at a site that is not designed either to receive the conceptus
H or to permit it to develop. The most common site js the fallopean tube.
VINITHA ASHOK v. LAKSHMI HOSPITAL [RAJENDRA BABU, J.] 301

Most cases culminate in disaster of one kind or another, the conceptus A
is almost invariably lost and the condition may also be fatal to the
mother."

- "The importance of early surgery has been stressed and it is said that
if an operation is to be done it must be done without delay."
B
"An extremely rare form of ectopic pregnancy, cervical pregnancy
produces profuse vaginal bleeding, without associated cramping pain."

Initial attempts can be made to stop the hilemerrhage by local removal
of the products of conception, if hemostasis is obtained, this is ad- C
equate treatment. Because of the depth of the trophoblastic invasion,
however, major blood vessels are often involved, and hysterectomy
may be necessary."

Dr. Rajan in his article 'Endovaginal Sonography in Infertility,
Gynaecology and Obstetrics', though acknowledges the usefulness of Trans- D
Vaginal Sonography until the introduction of this method the diagnosis precision
was questionable. Therefore, on that basis, no conclusion can be drawn that if
the Ultrasound had not been used in the case of the appellant it can be held
that there was negl;?:ence on the part of the respondents. Whatever had been
done by the respondents was part of general practice available in the State of E
Kerala. Therefore, the contention advanced on behalf of the appellant to the
contrary must be rejected.

[12] In the present case, the appellant did not have any history from

-
which presence of cervical pregnancy could have been suspected. The appellant
F
had not complained of any significant bleeding or painless bleeding or bleeding
with pain at any time. In the circumstances, the doctors could not have found
that the appellant had cervical pregnancy and they cannot be held guilty of any
negligence either in respect of diagnosis or in the matter of treatment
administered. Hysterectomy was the only solution on account of profuse bleeding
or severe vaginal or peritoneal bleeding. There was examination and cross- G
examination on the question whether it was a case of cervical pregnancy or a
normal pregnancy where peritoneal bleeding was caused by instrumental
perforation. The evidence of Dr. Rajan is that there is clear evidence in the case
that the bleeding by an instrumental perforation can be stopped by a laporotomy
and by suturing the site of the bleeding and that would not be the case in a H
302 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A cervical pregnancy. Dr. Balachandran, who is acknowledged to be a very high
authority in Kerala and was examined as RW 4, stated that whether perforation

-
was by an instrument or not can be clearly seen after laportomy and if an
instrument perforates the uterus, it can be stopped by suturing and it may even
stop automatically when the instrument is withdrawn.

B The main dispute between the parties is that it was a normal pregnancy
and not a Cervical Pregnancy. The contemporaneous record at the time of
operation indicated as follows:-
.
"Laporotomy (G.A), i.e., General Anesthesia
c While doing the MTP patient started bleeding profusely and signs of
internal bleeding was present. So an exploratory laporotomy 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 were
D actually in the cervical canal perforating the lower segment. Since the
bleeding was not controlled even after evacuation and suturing the
lower segment, total hysterectomy was done. Both tubes and ovaries
retained. A small rent in the bladder was repaired by Dr. C.B.C.
Abdomen closed in layers after perfect haemostasis. 3 units of blood
E transfused at the time of surgery. Urine drained by ioileys Catheter
continuously. Urine is clear. Output satisfactory."

The learned counsel submitted that the appellant is admittedly a high risk
patient and she had a normal pregnancy at the previous caesarean scar,
as noticed by Dr. Mohan, respondent No. 5, and Dr. Mohan not having
F been examined due weight should have been attached to the notings made by
him, particularly when he was one of the persons present in the operation
theatre.

This argument was based upon the notings made by Dr. Mohan. In his
notes about diagnosis he had remarked pregnancy ~t the previous scar and it ...
G was noticed that the PPH means Post Partem Hemorrhage which means following
a delivery. Dr. Somalatha P. Shenoy, respondent No. 3 stated that when the
. uterus was open she saw the amniotic sac with a small foetus and Dr. Santha
Warriar, respondent No. 2, evacuated this product the site of implantation was
noticed at the upper cervical canal and at the isthmic area. RW 4, Dr. C.
H Balachandran, stated that when the uterus was opened, his attention was drawn
VINITHA ASHOK v. LAKSHMI HOSPITAL [RAJENDRA BABU, J.] 303

by Dr. Santha Warriar showing him the foetus in a sac with cervionic tissue A
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 also averred that site of implantation of tissue extended from the scar
in the uterus to the upper part of the cervix and the scar means the scar opened
by Dr. Santha Warriar at the site of the previous scar caused by earlier caesarean
B
section, therefore, notings made by Dr. Mohan cannot be stated to be inconsistent
with the evidence placed before the court. His examination would not have
improved the matters. Even assuming that the noting of Dr. Mohan is not
entirely in acco~d with other evidence, his noting cannot be given undue weight
as against overwhelming evidence of other doctors with contemporaneous
record that the pregnancy of the appellant was ectopic. Hence, the finding of c
the Commission on this aspect cannot be assailed at all.

[ 13] If the appellant had ectopic pregnancy in the cervical canal as stated
above, the only remedy is Hysterectomy in which event, performance of the
test of Ultra sonogram would not have improved the matter at all. At best, Ultra
sonogram would have disclosed that uterus was empty and that fact does not D
establish as to where the pregnartcy is located. In this background, we consider,
it is futile to indulge in the exercise of study of evidence of doctors and medical
literature on the question or the need to conduct Ultra sonogram test or the
benefits therefrom.
E
[14] The next allegation regarding negligence on the part of the doctors
is that lamineria tent for dilating cervix was used instead of dilapan and again
on this aspect certain text-books were referred to. In the evidence of Dr. Rajan,
RW 1, it was stated that he was using larnineria tent for dilatation of cervical
canal. The use of larnineria test in dilatation of cervix is one of the accepted
standard procedures and it cannot be stated that the use of that procedure by F
respondent No. 2 in respect of appellant constituted a negligent act.

[15] Lengthy arguments have also been advanced before the Commission
that after lamiueria tent is inserted on 9.2.1990 the patient was allowed to go
away and tent should not be allowed to remain inside the cervix for more than
four hours as by that time it causes sufficient dilatation. The allegation made
G
is that respondent No. 2 used Larnineria Tent for dilating cervix instead of
dilapan. The evidence tendered before the Commission by Dr. Rajan and
respondent No. 2 was that in Kerala the commonly used method is dilatation
and evacuation or currettage. Therefore, the Commission concluded that no
complaint could be made to characterise the act on the part of respondents to H
304 SUPREME COURT REPORTS (2001] SUPP. 3 S.C.R.
A be negligent. Placing reliance on the article of Dr. G.I.Dhall on the subject of
'Suction Evacuation and Dilatation & Currettage in First Trimester MTP' it
was contended that suction evacuation is a method of choice in dealing with
termination of first trimester pregnancy and this method has replaced Dilatation
& Currettage method. Another article was referred to written by the same
author, which indicated that the most commonly used method of first trimester
B
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 does not say
that dilatation and curettage method for purposes of terminating the first trimester
pregnancy is a prohibited one. The evidence tendered by Dr. Rajan, RW 1, and
c respondent No. 2 has weighed with the Commission to come to the conclusion
that there is no negligence in the procedure adopted by the respondents.
Therefore, even if there is difference of opinion amongst the experts on the
procedure adopted by a doctor, but a procedure which is commonly in practice
in an area if adopted by a doctor, it cannot be said that there is negligence on
D his part.

( 16) The learned counsel submitted that lhe services of Dr. Somalatha P.
Shenoy, Assistant Gynaecologist, respondent No. 3, was soughtfor only after
complications started and it was only thereafter when the whole procedure was
over and bleeding could not be stopped and matters reached at point of no
E return, as a last resort to savG the appellant, Dr. C. Balachandran, Surgeon,
respondent No. 4, was called to save her life. These circumstances are thus
sufficient to hold that respondent Nos.· 3 and 4 were grossly negligent.

(17] The appellant is a high-risk patient is not in dispute. Respondent No.
F 2 claimed in her counter affidavit as well as in her statement that she had
explained all possible risks and dangers involved to the appellant and her
husband when they came to her on 3.2.1990 and 10.2.1990 was fixed for MTP
so as to give them sufficient time to reflect over the matter about the dangers
of going through for MTP. It is possible for the doctors to have done the MTP
or within a short period after 3.2.1990 and the fact that there was sufficient gap
G between the medical examination of the appellant and MTP which is not less
than a week is a circumstance which probalises the respondents' version that
time was given to the appellant to reflect over the matter.

[18] Now, we shall turn to the next question raised by the appellant that
H there has been negligence in failure to take precautions to prevent accidental
VINITHA ASHOK v. LAKSHMI HOSPITAL [RAJENDRA BABU, J.] 305

injury. The argument on this ~spect is based on the dictum of the direction A
given to the jury by McNair J. In Bolam v. Frie~n Hospital Management
Committee (supra) which is as under :

"I myself would prefer to put it this way : a doctor is not guilty· of
negligence if he has acted in accordance with a practice accepted as
proper by a responsible body of medical men skilled in that particular B
art. Putting it the other way round, a doctor is not negligent, if he is
acting in accordance with such a practice, merely because there is a
body of opinion that takes a contrary view."

This is the legal position of the standard of care required by a doctor. A
doctor will not be guilty of negligence if he has acted in accordance with the c
practice accepted as proper by a responsible body of medical men skilled in
that particular art and if he has acted. in accordance with such practice merely
.because there is a body of opinion that takes a contrary view will not make him
liable for negligence.

[19] In the present case, though large amount of medical literature had D
been placed and expert evidence had been put forth before the Commission to
indicate that Ultra sonography would not have established ectopic pregnancy,
some text books indicate that it was possible to identify such problem. But
when two views even if possible, the general practice in the area in which the
respondents practised such procedure was riot followed and, therefore, no E
negligence can be attributed to the respondents on that ground.

[20] The argument advanced on behalf of the appellant is that in pregnancy
with vaginal bleeding one must find out a cause of the bleeding before doing
any procedure especially D&C, which may carry a risk of uterine injury of
perforation. There is no material placed before the Court or foundation laid in F

- evidence to show that there was vaginal bleeding in the present case before the
proceedings commenced so as to attract the observation made in Atlas on
Obstetric Complications by F.H. Falls & C.S. Holt.

[21] The Hospital, respondent No. 1, is alleged to have committed breach
... of its primary duties, as noticed earlier, for (i) inadequate supervision of G
physician; (ii) inadequate staffing and (iii) failure to provide ancillary services
to the appellant. Regulation 4 of the Medical Termination of Pregnancy Act,
1971 provides that it is incumbent on the part of respondent No. 2 to obtain
duly filled consent forms and respondent No. 1 is responsible to keep them in
a cover which is mostly secret. So f"ar as this aspect is concerned, we have Id
306 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A adverted to the comments made by the Commission that the records had been
taken away by the appellant and her advisers on her behalf and xerox copies
of the same were available with them, which were produced as exhibits along
with the complaint made to the Commissio.n. In those circumstances, the
inference has beeri rightly drawn that the appellant or someone else on her
behalf must have caused disappearance of the consent forms and, therefore, the
B
appellant cannot make any grievance in that regard.

[22] It is alleged that there is no Pathology Department in the Hospital
and despite this the removal of the uterus and the products of conception were
not sent to outside Pathological Department to confirm the diagnosis and Jor
c future follow up actions and that cervix in the uterus, being a seat of cancer
it was all the more necessary particularly when the alleged diagnosis is cervical
pregnancy which is rarest type of case. the stand of the respondent on this
aspect is that ip the case of the appellant what was seen was a normal sac with
a growing foetus and, therefore, there was no need for any further
histopathological examinatio'n. Even assuming for a moment that the uterus had
D
not been sent for histopatholigical examination after surgery, it would not have
helped the case of the appellant in any manner because that would not have
established in any· manner negligence on the part of the respondents in the
course of the surgical procedure adopted in case of the appellant. If there was
a suspicion of cancer, there would have been some manifestation of the same
E and, in such a circumstance histopathological examination would have been
done to rule out the possibility of cancer. However, there was no complaint of
any kind of cancer nor was there any such visible proof of the same. The stand
of the respondents is that the case of the appellant was one of a normal
trophoblast getting implanted in the upper most part of cervix and, in such
F cases, the question of her having carcinoma could not arise. In these
circumstances, we cannot say that the failure to send the uterus and the products
of conception after surgery for histopathological examination has resulted in
any negligence on the part of the respondents. Therefore, on this aspect also . . --
the appellant has failed.

G [23] The other contention under this head addressed by the appellant is
that the stand of the doctors that profuse bleeding was on account of tropoblastic
...
f
invasion or penetration of cells of cervical pregnancy but on this aspect there
was no note made. The appellant contended that the defence raised by the I
H
respondents was that the profuse bleeding was on account of tropoblastic
invasion/penetration but it could be so only if the condition had arisen at cervix \
VINITHA ASHOK v. LAKSHMI HOSPITAL [RAJENDRA BABU, J.] 307
of the uterus which is a neopbasic condition and an abnormal form of pregnancy A
which comes under the head of Molar Pregnancy and Choriocarcinoma which
are malignancy pregnancies and to rule out that possibility histopathological

-
examination was required. But, as· a fact, there is no such material arising in
the present case. Even if such a complication had arisen it would not have
helped the appellant in any manner. In any event, cervical pregnancy had to B
be attended to and appropriate procedure had to be adopted for terminating the
same, even if by doing total Hysterectomy. In the light of this fact, all arguments
advanced on behalf of the appellant on this aspect pale into insignificance.

(24] This Court in Achutrao Haribhau Khodwa v. State of Maharashtra
& Ors., (1996] 2 SCC 634, had occasion to examine the test for determining c
negligence of reasonable skill, knowledge and care in the matter of performing
his duties by a medical practitioner. After referring to the decision in Bolam
v. Friern Hospital Management Committee [supra] and Rogers v. Whitaker,
(1992) 109 ALR 625 [though reported in 1993 Australian Law Journal Reports
- .I.) Vol. 67 Part (2) 47], wherein the High Court of Australia has held that the D
question is not whether the doctor's conduct accords with the practice of a
medical profession or some part of it, but whether it conforms to the standard

-
of reasonable care demanded by the law and that is the question for the court
-:'" to decide and the duty of deciding it cannot be delegated to any profession or
group in the community. Thus there has been divergence of view between E
Bolam scase (supra) and Rogers's case (supra). In Sidaway v. Board ofGovernors
of Bethlem Royal Hospital, (1985] 1 All ER 643, the House of Lords examined
the principle of Bolam's case and had accepted it as applicable to diagnosis and
treatment in England. This Court in Laxman Balakrishnan Joshi (Dr.) v. Dr.
Trimbak Bapu Godbole, [1969] 1 SCR 206, has held as under :
F
... "A person who holds himself out ready to give medical advice and
treatment impliedly undertakes that he is possessed of skill and
knowledge for the purpose. Such a person when consulted by a patient

- owes him certain duties, namely, a duty of care in deciding whether
to undertake the case, a duty of care in decid.ing what treatment to give
or a duty of care in the administration of that treatment."

The aforesaid principle has been reiterated by this Court in A.S. Mittal
G

v. State of U.P., [1989] 3 SCC 223, wherein it was stated that :

"The approach of the courts is to require that professional men should H
308 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A p'bssess a certain minimum degree of competence and that they
should exercise reasonable care in the discharge of their duties. In
general, a professional man owe~ to his client a duty in tort as well as
in contract to exercise reasonable care in giving advice or performing
services."
B
After considering the effect of all these decisions, this Court in Achutrao """
Haribhau Khodwa's case held as follows :-

"The skill of medical practitioners differs from doctor to doctor. n.e
very nature of the profession is such that there may be more than one
c course of trea~ment which may be advisable for treating a patient.
Courts would indeed be slow in attributing negligence on the part of
a doctor ifhe has performed his duties to the best of his ability and with
due care and caution. Medical opinion may differ with regard to the
course of action to be taken by a doctor treating a patient, but as long '
D as a doctor acts in a manner which is acceptable to the medical
profession and the court finds that he has attended on the patient with
due care, skill and diligence and if the patient still does not survive or
suffers a permanent ailment, it would be difficult to hold the doctor to
be guilty of negligence." [pp. 645, 646]

E [25] Now, let us test whether the material on record leads us to an
inference of negligence on the part of the respondents.

We have elaborately discussed the question of diagnosis in the decision
whether MTP should. be done or not; whether non-performance of Ultra
F sonography has resulted in ~11y negligence; ·whether there has been any
negligence on the part of the concerned doctors in inserting the lamineria tent
and allowing ~t to stand over for more than four hours or whether there has been ....
any dam:ige done to any of the organs of the appellant by the instruments used
at the time ofLaporotomy and D & C. We have drawn conclusions upon the
evidence produced on record and after detailed consideration of medical and
G
oral evidence and the evidence recorded by the Commission with respect to
contentions urged on behalf of "the respondents, that is, there has been no
negligence on their part.

[26] On any one of the aspects upon which the learned counsel for the
H appellant has addressed us, he has not been able to establish that there has been
VINITHA ASHOK v. LAKSHMI HOSPITAL [RAJENDRA BABU, J.] 309
- negligence on the part of the respondents. The case of the appellant was of such A
a kind that it was difficult even for a doctor to diagnose on the evidence on
record as to whether she had ectopic pregnancy or not.

(27] However, the learned counsel has referred to the decision of the
House of Lords in Bolitho (administratrix of the estate of Bolitho (deceased)
B
v. City and Hackney Health Authority, [1997] 4 AER 771, to contend that the
expert evidence tendered though can be accepted as proper there may be
circumstances in which expert evidence cannot be relied upon as establishing
proper level of skill and competence. If the record discloses expert evidence
both for and against a particular procedure, whether the evidence adduced is
reasonable and responsible and whether such evidence is capable of withstanding c
the logical analysis is for the court to decide.
.......... •
(28] Thus in large majority of cases, it has been demonstrated that a
doctor will be liable for negligence in respect of diagnosis and treatment in
spite of a body of professional opinion approving his conduct where it has not D
been established to the court's satisfaction that such opinion relied on is
reasonable or responsible. If it can be demonstrated that the professional
opinion is not capable of withstanding the logical analysis, the court would be
entitled to hold that the body of opinion is not reasonable or responsible. But
the present case does not warrant such a conclusion since it is implicit in the
E
court's view that the course adopted by Dr. Santha Warriar, respondent No. 2,
as reasonable and although the risk involved might have called for further
investigation, we cannot dismiss the doctor's view to the contrary as being
illogical. On that basis, we find that this decision is not of much help to the
appellant.
F
Clark v. Maclennan & Anr., [1983] 1 All ER 416, was a case where a
procedure had been adopted which was a departure from the orthodox course
of treatment. However, there has neither been such an allegation nor proved
as a fact in the present case. Therefore, that decision has no application in the
instant case. G
The learned counsel for the appellant adverted to the decision in Cassidy
v. Minist1y of Health, (1951] 2 KB 343, to contend that a hospital authority is
responsible for the negligence of its medical staff. But, as we have found, in
the present case, no negligence has been established on the part of the medical
H
310 SUPREME COURT REPORTS [2001] SUPP. 3 S.C.R.
A staff of respondent No. l. Therefore, we find this decision also to be of no
relevance.

Though there was refere_nce to certain other decisions by the learned
counsel for th_e appellant, we consider it unnecessary to advert to them since
they do not lay down any different or new principles apart from what we have
B
stated in the course of this judgment.

[29] In the light of the discussion made above, we find that the appellant
has not been able.to establish the case of negligence on the part of the respondents
and, therefore, this appeal stands dismissed. However, in the circumstances of
C the case, the parties shall have to bear their respective costs.

NJ. Appeal dismissed.