BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD
F.A.No.413/2013 against C.C.No.116/2009, Dist. Forum, Karimnagar.
Between:
1.V.Kanaka Raju,
S/o.Venkataiah, Aged about 40 years,
Occ:Director, Venkat Sai Nursing Home,
R/o.Venkata Sai Nursing Home,
Manoherlal X Road, Karimnagar.
2. Dr.Y.Narendra, S/o.Yallayya,
Aged about 64 years, Occ:Retd. Civil Surgeon,
R/o.Sri Laxmi Vani Nilayam, Ashok Nagar,
Karimnagar.
3. Dr.Pabba Sri Chaitanya, S/o.Lingaiah,
Aged about 59 years, Occ:Gynecologist,
R/o. Civil Hospital, Sultanabad,
Karimnagar District. … Appellants/
Opp.parties 1,2 & 4
And
Damarapalli Rama Devi, D/o.Laxma Reddy,
Aged about 20 years , Occ: Student,
R/o.Mogdumpur Village,
Karimnagar Mandal & Dist.
Rep. by father D.Laxma Reddy … Respondent/
Complainant
Dr.Sanjeeva Rao,S/o.Not known,
Aged about , : Anesthetist,
X Road,
.
Dr.T.Vamshi Mohan, S/o.not known,
Aged about 44 years, ,
Besides K.K. Maternity Home,
Civil Hospital Road, . … Respondents/
( Respondents 2 & 3 are not necessary parties)
Counsel for the Appellants : M/s. V.Gowrisankara Rao
Counsel for the respondents : M/s.P.Elamadhar-R1
QUORUM: HON’BLE SRI JUSTICE GOPALAKRISHNA TAMADA, PRESIDENT,
SRI T.ASHOK KUMAR, HON’BLE MEMBER,
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
TUESDAY,THE FIFTEENTH DAY OF APRIL,
TWO THOUSAND FOURTEEN.
Oral Order: (Per Sri S.Bhujanga Rao, Hon’ble Member).
***
This appeal is directed against the order dt.16.4.2013 of the District Forum, Karimnagar made in C.C.No.116/2009 filed by the respondent no.1/complainant claiming compensation of Rs.20 lakhs for deficiency in service on the part of the opp.parties 1 to 4.
The appellants are the opposite parties 1, 2 & 4 and the respondent no.2 and 3 herein are the opposite parties 3 and 5 respectively and the respondent no.1 herein is the complainant in C.C.No.116/2009. For the sake of convenience, the parties are described as arrayed in the complaint.
The brief case of the complainant as set out in the complaint is that on 05.06.2009 the complainant aged 16 years suffered mild pain in her stomach, as such, the complainant along with her father approached opp.party no.1’s hospital Venkata Sai Nursing Home, Karimnagar. After physical examination ofthe complainant, the opposite party no.1 referred the complainant to opposite party no.5 for Ultrasound Abdomen Test. After conducting the test, the opposite party no.5 reported interalia that the right and left ovary of the complainant were normal in size and echotexture, he further reported an impression that “ Non obstructive bilateral renal calculi” and “Mild amount of free fluid in pelvis”. On seeing the report, the opposite party no.1 had informed thecomplainant that appendicitis was detected and that immediate surgery was required. The complainant went to her house at Moqdampur Village. On 06.06.2009 the opposite party no.1, who is also a native of Moqdampur Village again checked the complainant and cautioned the complainant and her parents that there was imminent danger to the life of the complainant and that the complainant had to undergo surgery as early as possible and asked the complainant to come to Venkatasai Nursing Home for undergoing the surgery with empty stomach, early in the morning.
On 07.06.2009 in the morning hours, the complainant along with her parents, approached the opposite party no.1 and paid deposit of Rs.3000/-. The complainant was taken to the hospital theatre at about 1 p.m. and commenced surgery on the complainant at about 2 p.m. The surgery team consisted of opposite parties 1 to 4. The opposite parties 1 to 4 made Mc.Burney Incision in the lower right quadrant for appendectomy. As they did not see any appendicitis, they closed incision in layers with five stitches. The opposite parties 1 to 4 made Laparotomy and removed the right ovary of the complainant and closed it in layers with 7 stitches, apart from making a drain hole in the lower left guardant of the complainant. The complainant’s father who was called to the operation theatre was shocked at the situation, wherein the opposite party no.2 moved the intestines of the complainant and there was heavy bleeding. The complainant was hospitalised from 07.06.2009 to 14.06.2009 in Venkatasai Nursing Home and later moved to Govt.Civil Hospital, Karimnagar, upon the directions of Dist. Medical and Health Officer, Karimnagar.
It is alleged against the opposite parties 1 to 4 that they were negligent in diagnosing a mild pain in the stomach of the complainant, even after the report given by opposite party no.5 and that they were negligent while doing operation on the right quadrant and further in a negligent manner they madeLaparotomy and removed right ovary of the complainant. On the complaint given by the complainant’s father, the Dist. Medical & Health Officer, Karimnagarconducted enquiry and found that the hospital was running without registration before proper authorities. On a complaint given by the Dist. Medical and Health Officer, Karimnagar, S.H.O., II Town P.S. registered the case against opposite party no.1 under Sec.420 I.P.C. on 21.06.2009. Thus there is deficiency in service on the part of the opposite parties 1 to 4. The acts of the opposite parties 1 to 4 caused mental agony, mental distress apart from losing vital organ i.e. ovary, for which the complainant filed the complaint claiming compensation of Rs.20 lakhs.
Resisting the complaint, the opposite parties 1, 2 & 4 filed written version/counter denying the material allegations made in the complaint. Theycontended that at the request of the father of the complainant and after obtaining written consent of the father of the complainant and after investigations, the surgery was contemplated on 07.06.2009 at 1 p.m. The complainant was taken to operation theatre and the surgery was commenced at 2 p.m. It iscontended that the surgery team consisted of only opposite parties 2 to 4 and opposite party no.1 was not at all present at the operation theatre. The opposite party no.2 had observed that there was minimal free fluid in pelvis. They opined that though appendicitis is not visualised in the routine scan, still fluid in the pelvis could be a result of acutely inflamed appendix and that the presence of free fluid in peritoneal cavity and clinical symptoms and signs were in favour of acute appendicitis. Then Dr.Sanjeeva Rao (Opp.party no.3) administered the spinal anaesthesia. The abdomen was opened by McBurny’s incision, which is a routine procedure. On opening the peritoneum, black blood was found, coming out from the medial side. The black blood was cleaned and appendix was found containing faecolith and acutely inflamed, appendicectomy was done. To know the source of bleeding, through that same opening, it was searched and found a big cyst in the mid-lower abdomen which was bleeding. Immediately Dr.Chaitanya (Opp.party no.4) was called and later the father of the complainant was called and he was explained of the situation. As per the condition of the patient and basing on the consent given by the father of the complainant, as it was necessary to open the abdomen and explore to save the patient, as she was bleeding actively and the bleeding should be controlled, the opposite party no.4 opened the abdomen, by lower mid line incision, after the opposite party no.3 repeated the spinal anaesthesia. Then the opposite party no.4 found big right sided ovarian cyst of about 8 cms. x 5 cms. which was bleeding. So, right sidedOophorectomy was done and cleaned the blood clots and closed the abdomen by keeping the corrugated rubber drain in left iliac fossa as the right side was already having incision. The patient recovered well. Daily she was examined and necessary treatment was given. She recovered totally and was discharged on 14.06.2009, after removal of sutures and necessary prescription was given. Therefore, enough care and caution was taken while handling the patient and only required treatment with sufficient caution was given to the complainant. Opposite parties 1 to 4 never breached the legal duty to take care of the complainant and that there was no deficiency in service on the part of the opposite parties 1 to 4, as they discharged their duty with utmost caution and care. As such, they are not liable for any compensation to be paid to the complainant.
Subsequently opposite parties 3 and 5 were called absent and were set exparte .
During the course of enquiry, both parties have filed affidavit evidence. The complainant got marked Exs.A1 to A3. The complainant and her father (PW.1 & PW.2) were cross examined by the contesting opp.parties. The complainant got examined opp.party no.5 Dr.Vamsi Mohan as PW.3 who filed Ex.C1 and C2. During the course of his evidence, the complainant has also got examined PW.4 through whom Exs.C3 and C4 were marked. Opposite partyno.4 filed Ex.C5 a photo copy of Hystopathology report dt. 18.06.2009.
Having heard the counsel for both the parties and having considered the material on record, the District Forum came to the conclusion that there was negligence in conducting the surgery, resulting in heavy bleeding, which further resulted in removal of right ovary of the complainant, causing deprivation of reproductive system and consequently allowed the complaint, in part, directing the opposite parties 1,2 & 4 to pay to the complainant, jointly and severally, a sum of Rs.3 lakhs with interest at 9% p.a. from the date of filing of the complaint and Rs.1000/- towards costs.
Aggrieved by the said order, the opposite parties 1,2 & 4 preferred the above appeal urging that the opposite party no.2 is an experienced surgeon having vast experience of about 33 years and conducted hundreds of appendectomy operations. That the ultra sound scan report revealed free fluid. That after explaining the condition of the patient to the father of the complainant and after taking his oral consent as the patient was bleeding heavily, the opposite party nos. 2 & 4 proceeded further and found big right sided ovarian cyst about 8 x 5 cms. which was bleeding. So right side Oopherectomy was done, cleaned the blood clots and closed the abdomen. The District Forum failed to consider the above material on record, and erroneously came to the conclusion that there was negligence and deficiency in service on the part of the opposite parties 1 , 2 & 4. Therefore, the appellants finally prayed to allow the appeal and set aside the impugned order of the District Forum and dismiss the complaint.
We heard the counsel for both the parties and perused the entire material placed on record.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
The contention of the complainant is that as she was suffering from mild stomach pain, her father took her to opposite party no.1’s hospital Venkatasai Nursing Home on 05.06.2009 for treatment. On physical examination of the complainant, the opposite party no.1 referred the complainant to opposite party no.5 Dr.T.Vamshi Mohan for an Ultra Sound Abdomen Test. After conducting the test, the said doctor opined that right and left ovaries of the complainant were normal in size and echotexture. He further reported an impression “Non obstructive bilateral renal calculi” and “Mild amount of free fluid in pelvis”. After collecting the report from the said doctor, she again approached the opposite party no.1, who informed the complainant and her father that appendicitis was detected and that immediate surgery was required. On 06.06.2009, the opposite party no.1 again checked the complainant and informed that surgery was required, as soon as possible, as there is imminent threat to the life of the complainant and asked the complainant to go to VenkatasaiNursing Home for undergoing surgery.
On 07.06.2009 with her parents the complainant went to the said nursing home and met opposite party no.1. The complainant was taken to the operation theatre at about 1 p.m. and surgery was started on the complainant at about 2 p.m. The surgery conducted by the team consisting of opposite parties 1 to 4. The team of doctors made Mc.Burney Incision in the lower right quadrant for appendectomy. The team of doctors did not see any appendicitis, as such, closed the incision in layers with 5 stitches and later, the team of doctors made Laparotomy and removed the right ovary of the complainant, apart from making a drain hole in the lower left quadrant of the complainant. The complainant was in the Venkatasai Nursing home belonging to the oppositeparty no.1 as an inpatient from 07.06.2009 to 14.06.2009, on which date, she was discharged from the hospital.
The opposite parties 1, 2 & 4 admitted that the complainant was brought to the opposite party no.1 hospital on 05.06.2009, by her father, with a complaint of severe pain in her stomach. But according to the opposite party no.1, the complainant came with severe stomach pain besides vomiting cooliky pains in right iliac Fossa for three days. The opposite party no.1 had admitted that they examined the condition of the complainant and referred her to the laboratory of opposite party no.5 for an ultra sound abdomen test. After conducting ultra sound abdomen test on complainant, opp.party no.5 gave a report which is marked as Ex.A2/1.
The opposite party no.5 Dr.T.Vamsi Mohan, who has been running diagnostic centre in the name of Vinayaka Diagnostic Centre at Karimnagar was examined as PW.3. He has stated that he has examined Rama Devi i.e. the complainant no.1 and did ultra sound examination on her abdomen on 05.06.2009 and issued Ex.A2/1 Ultra Sound Abdomen Report.
The learned counsel for the appellants submitted that Ex.A2 report is a wrong report. Except the submission, the appellants /opposite parties havenot adduced any evidence to show that Ex.A2/1 Radiology Report is a wrong report. It is true that P.W.3 who is opposite party no.5 in the complaint remainedexparte before the District Forum. It is significant to note that the complaint is dismissed by the District Forum against opp.parties 3 and 5. Under these circumstances, we do not find any reasons to disbelieve the evidence of PW.3. Ex.A2/1 report is therefore proved by P.W.3 (opp. party no.5).
Opp.party no.5 has stated in Ex.A2/1 report that right Ovary and left Ovary were normal in size and echotexture. He also stated that there is mildamount of free fluid in pelvis. He explained in his evidence as PW.3 that this fluid is some liquid which could either puss/ watery fluid/blood/ any other secretion from any of the organs that are located within the abdomen.
During his cross examination by the counsel for the opposite parties 1,2 and 4, PW3 has admitted that Ex.A2/1 is having printed matter on the back side which contains reporting conditions and that Ex.C1 is the same showing the reporting conditions on the back side. He accepted all the conditions shown in Ex.C1 as true and correct and stated that the report he has given is subject to the conditions in Ex.C1. Last conditions mentioned in Ex.C1 is “Sensitivity and speciality of any investigation is never more than 90-95% and is limited by various above mentioned technical reasons & pit falls”. PW.3 has also admitted the same in his evidence and further added that there might be chances of 5 to 10% error in the ultra sound reports. He has also stated that cyst consists of watery fluid and that C.T. scan is a further development for better investigation and that there might be variations in findings in images and physical appearances.
From the last condition mentioned in Ex.C1 and the above evidence of PW.3, it is clear that Ex.A2/1 report is not 100% accurate. It may be about 90% accurate.
It is the case of the opposite parties 1, 2 & 4 that as per medical jurisprudence it is difficult to trace out the presence of cyst with the help of ultra sound examination, because it may be in fluid condition. Therefore, on the basis of ultra sound examination report and with his clinical judgement and skill, opposite party no.2 diagnosed the case as acute Appendicitis and he removed the Appendix. As blood is gushing out, he removed the black blood and searched for the cause for the bleeding and found big cyst. Then he called opposite party no.4 who is a Gynecologist and opposite party no.4 ascertained the bleeding of ovarian cyst which was a life threatening, as such, he called the father of the patient and explained the consequences and after taking his consent, he conducted the operation and removed the right ovarian cyst. Therefore, there was no negligence on the part of the opposite parties 1,2 & 4.
The evidence of PW.3 Dr.Vamshi Mohan (opp. party no.5) and Ex.A2/1 report proved that right and left side ovaries of the complainant are normal in size and Echotexture and also found the impression “NON OBSTRUCTIVE BILATERIAL RENAL CALCULI” and “MILD AMOUNT OF FREE FLUID IN PELVIS”. The contention of the opposite parties 1,2 & 4 is that visually, acute appendicitis is not visualised in the routine scan, still fluid in the pelvis could be a result of acutely inflamed appendix. RW.1 Dr.Y.Narendra (Opp.party no.2) who conducted appendectomy operation on the complainant stated in his evidence that presence of free fluid in peritoneal cavity and clinical symptoms and signs were in favour of acute appendicitis. Then he opened the abdomen of the complainant by Mc Burny’s incision, which is a routine procedure and on opening peritoneum, black blood was found coming out from the medial side. The black blood was cleaned and appendix was found containing faecolith and acutely inflamed. He further stated about their case as mentioned n their written version. During his cross examination he has categorically stated that after going through Ultra Sound Report vide Ex.A2/1, he preferred to conduct Appendectomy operation. He says that most of the times the USG reports may not be correct and depends upon the surgeon’s experience, clinical knowledge and his skill. Accordingly with his clinical knowledge and skill he has diagnosed the case as acute appendicitis. He denied the suggestion thatthere was no necessity to conduct Appendectomy operation to the patient.
Having regard to the above evidence, we are of the view that simply because acute appendicitis is not seen in Ex.A2/1, it cannot be held that there was no appendicitis in stomach of the complainant, especially in view of the presence of liquid in pelvis. The complainant has not placed any evidence, to show that the contention of the opposite parties 1,2 & 4 that fluid in the pelvis may be the result of acutely inflamed pelvis is not correct. The complainant has also not placed any evidence, to prove that the opposite parties were negligent while doing operation on the right quadrant and due to that blood gushed out, from the abdomen. Ex.A2 the copy of the case sheet maintained by Vankata Sai Nursing Home for the treatment given to the complainant supports the contention of the opposite parties. Absolutely there is no evidence on record, for the conclusion of the District Forum that after appendectomy was done, as blood gushed from the operated portion, to know the source of bleeding, through that same opening, he found one big cyst in the mid lower abdomen which was bleeding.
Admittedly opposite party no.3 has done Oopherectomy on the complainant and found ovarian cyst of about 8 x 5 cms. Except the bald allegations, the complainant has not adduced any evidence to establish that Ooptherectomy was done on the complainant, on account of wrong appendectomy done by the opposite party no.2. Since the existence of cyst on the ovary was not in dispute, the opposite party no.2 cannot be found fault with for not suggesting to have either C.T.Scan or MRI Test, especially in view of the explanation given by him in his evidence for not suggesting to have C.T. Scan and M.R.I. test.
RW.2 Dr.Pabba Sri Chaithanya, Gynaecologist has stated in his evidence that there is no negligence while examination and operation in rendering service and biopsy was done by Dr.Raman Kumar M.D.(Path) and that the report of the pathologist shows actively inflamed appendix and hemorrhagic ovarian cyst.
The copy of the biopsy report is filed and marked as Ex.C5. Dr. Ch.Raman Kumar, M.D., (Path) of Manasa Diagnostics, Karimnagar was examined to prove Ex.C5. He had stated in his evidence that he had issued Histro Pathology Report of Ramadevi Dt.18.06.2009 . He handed over the original report to the patient’s father. As per his report, the patient was suffering from large ovarian cyst of 8 x 7 x 6 cms., which is abnormal in size with areas of haemorrhages, along with appendix. According to him the says appendix findings are that patient suffering from acute appendicitis. He opined “SEROUS CYST WITH AREAS OF HAEMORRHAGES AND ACUTE APPENDICITS”.
PW.1, the complainant and PW.2 her father D.Laxma Reddy have categorically admitted in their cross examination that PW.2 took the removed ovarian cyst for biopsy test to RW.3 Dr.Raman Kumar. PW.2 in his cross examination admitted that the entire operation for appendicitis and removal of cyst was done at one time and that he himself took the removed cyst from ovary to the laboratory for test (biopsy).
It is true that Ex.C5 does not bear any endorsement of true copy or duplicate and it does not contain attestation. The doctor, who issued the original of Ex.C5 report, himself gave evidence as RW.3 stating that he issued the original of Ex.C5. The complainant’s father i.e. PW.2 did not sayanything in his evidence that the original of Ex.C5 was not given to him by RW.3. Therefore, Ex.C5 cannot be ignored, simply because it does not bear his endorsement as true copy or duplicate or attestation. He denied the suggestion put to him by the counsel for the complainant that Ex.C5 is not the report of the complainant and that it is fabricated and that the contents of Ex.C5 are false. The complainant and her father as PWs.1 and 2 themselves admitted during their cross examination that ovarian cyst was taken for biopsy by PW.2 to RW.3.
It is true that RW.2 Dr.P.Chaithanya admitted that they have not mentioned in their counter that biopsy was done by Dr.Raman Kumar, M.D., Pathology. Basing on this evidence of R.W.2, it cannot be held that biopsy was not done by Dr.Raman Kumar M.D.,Pothologist, especially in view of the fact that P.W.1 and P.W.2 during their cross examination have categorically admitted that P.W.2 himself taken ovarian cyst to Dr.Raman Kumar for biopsy test.
The District Forum basing on the discrepancy regarding the measurement of the removed cyst in the counter and in the cross examination of R.W.1 and R.W.2 doubted the genuineness of Ex.C5. The size of the removed ovarian cyst cannot be measured on the table by the doctor who removed the same. Depending upon the visibility, the approximate size will be mentioned, if there is delay, there is every possibility for this cyst to reduce in size. As such, different doctors may give different sizes of the cyst approximately. Therefore, the District Forum is wrong in coming to the conclusion that Ex.C5 is not genuine and that R.W.3 did not conduct biopsy test of the removed ovarian cyst. Under these circumstances, we do not find any reasons, much less valid reasons to disbelieve the evidence of R.W.3, Dr.Raman Kumar and Ex.C5 report. The evidence of R.W.3 and Ex.C5 proved that the complainant was suffering from large ovarian cyst measuring 8x7x6 cms. with areas of haemorrhages along with appendix and that the patient was suffering from acute appendicitis.
Neither in the complaint nor in their evidence, PWs.1 and 2 have stated anything about the negligent act of the doctors while conducting the operation as per Exs. C4 and C5. The evidence discussed above established that the diagnosis made by the opposite parties 1,2 & 4 is right and there is no material on record to show that their diagnosis is wrong. Before removal of the right ovarian cyst, opposite party no.2 consulted opposite party no.4, Gynaecologist regarding bleeding and in the given circumstances, if the cyst is not removed it leads to death, as such, non removal of the cyst amounts to gross negligence. That apart, the complainant has not filed expert opinion, to show that there is medical negligence on the part of the opposite parties 1,2 & 4 in conducting the operation and removal of ovarian cyst.
PW.4 Dr.N.Sharada the then Dist. Medical & Health Officer, Karimnagar has categorically stated in her evidence that Dr.Narendra ( O.P.No.2) andDr.Chaianya (O.P.No.4) are qualified doctors to conduct the operation like appendicitis etc. She had stated in her cross examination, supporting the case of the opposite parties 1,2 & 4. It is true that she has stated that she was deposing on the basis of the medical record and that she did not examine the patient, but her opinion basing on the medical record cannot be ignored. She has categorically stated that as per her opinion, the procedure adopted by the doctors in this case is correct procedure. In view of the above discussed facts and circumstances, we are of the view that the complainant failed to prove that there was medical negligence on the part of the opposite parties 1,2 and 4 .
Now the question for determination is whether the opposite parties 1, 2 and 4 obtained proper consent of the complainant and her father before proceeding with the operation for appendicitis and for removal of right ovarian cyst? Admittedly, they have not obtained the consent of the complainant or her father before proceeding with the operations. As seen from the Consent Form, except the signatures of the patient and witnesses, the Consent Form was not filled by the hospital staff, in which the complainant has undergone surgery. The important aspect to be mentioned in the Consent Form is diagnosis and the nature of the treatment in the relevant columns. The components of informed consent i.e. information, voluntariness and capacity, name of the surgeon or doctor who performed the operation and explained the purpose of the operation or procedure are not indicated in the consent form. As stated above, the name of the ailment and the surgery required are also not mentioned. It is true that PW.1 and 2 have admitted in their cross examination that their consent was obtained by the doctors. In our considered view the oral consent, if any, obtained by the doctors is not a proper consent require under the prescribed medical rules and regulations. Under these circumstances, we have no hesitation to hold that there is deficiency in service on the part of the opposite parties 1,2 & 4 in not obtaining the proper consent of the complainant or her father, before proceeding with the operations.
For the afore said facts and circumstances, we are of the considered view that there was no negligence in conducting the surgery on the complainant and removal of right ovarian cyst of the complainant. However there is deficiency in service on the part of opp.parties 1, 2 and 4 in not obtaining proper consent of the complainant and her father before proceeding with the operation, for which, they are to be penalised. Therefore, we direct the opposite parties 1, 2 & 4 to pay Rs.1 lakh (instead of Rs.3 lakhs awarded by the District Forum) towards the compensation for deficiency in service with interest at 9% p.a.
In the result, the appeal is allowed in part. The appellants/ opp.parties 1,2 & 4 are directed to pay the complainant jointly and severally a sum of Rs.1 lakh towards compensation. The order of the District Forum is accordingly modified retaining the remaining portion of the order as it is. The appellants/opp.parties are directed to comply with the order within four weeks from the date of this order.
PRESIDENT
MEMBER
MEMBER
Pm* Dt.15.4.2014