Date of Filling: 28.07.2015
Date of Disposal: 27.07.2018
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
THIRUVALLUR-1
PRESENT: THIRU.S.PANDIAN, B.Sc., L.L.M. ….PRESIDENT
THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP., …MEMBER
CONSUMER COMPLAINT No.41/2015
FRIDAY, THE 27 DAY OF JULY 2018
K.Uma,
W/o, Kaliyaperumal,
No.10 Thiruvengada Nagar,
First Main Road,Thiruninravur,
Chennai 602 024. ……… Complainant.
//Vs//
1.M/s Sir Ivan Stedford Hospital,
Avadi, Chennai 54.
(Managed by A.M.M, Foundation)
2.Dr.Gowri,
M/s Sir Ivan Stedford Hospital,
Avadi Chennai 54.
3.Dr.Suji,
M/s Sir Ivan Stedford Hospital,
Avadi, Chennai 54.
4.Dr.Lalitha,
M/s.Sir Ivan Stedford Hospital,
Avadi, Chennai 54. …….Opposite parties.
This complaint has come before us finally on 13.07.2018 in the presence of the Thiru. S.Natarajan, Advocate on the side of the complainant and M/s. A.R. Poovannan Counsel for the opposite parties 1to 4 and having perused the documents and evidences on both sides, this Forum delivered the following:-
ORDER
PRONOUNCED BY THIRU.S.PANDIAN, PRESIDENT.
This complaint is filed by the complainant U/S 12 of Consumer Protection Act.1986 against the opposite parties for seeking direction to refund the sum of Rs.75,000/- for complainant’s hospitalization, treatment and medicines and Rs.5,00,000/- towards compensation for causing mental agony, hardship, strain, inconvenience and monetary loss due to the deficiency in service of the opposite parties with cost.
2.The Brief averment of the complaint as follows:-
On 14.02.2015, the complainant went to 1st opposite party’s hospital and informed the 1st opposite party of her earlier visits and consultations with doctors at Jipmer and SRMCH Porur, Chennai for having abdominal pain. After seeing the scan report, medical records of earlier treatment, opposite parties 2to 4 advised the complainant to undergo the surgery for removal of uterus. Then she was admitted as inpatient on 16.02.2015 was diagnosed for Dysfunctional uterine bleeding shortly called DUB. The complainant was not prescribed any medical therapy or hormone therapy. However the opposite parties 2to 4 straightaway advised for Hysterectomy (removal of uterus) without explaining the benefit of removal of uterus through abdominal route or on the alternative routes, their comparative benefits. The complainant under want LAVH on 20.02.2015.
3. That in every case where hysterectomy is performed D&C is done prior to hysterectomy as a routine with view to mould the procedure according to the findings of the D&C if necessary. Admittedly the opposite parties 2 to 4 have not performed D and C prior to hysterectomy. There was no proper information and consent taken by the 1st opposite party prior to surgery. The opposite parties fixed the date of operation, without following above procedure. The complainant ought not to have been given spinal anesthesia ought to have given by a needle into the back in the spine. By this technique all the area where the operation is carried out is fully anaesthetized. This is a worldwide accepted mode of anesthesia for vaginal hysterectomy it is normal practice to do a dilatation and curettage (D and C) to check on the condition of uterus lining before proceedings for hysterectomy. Pre-operatively the opposite parties 2to 4 without following the medical norms did the operation negligently. To remove the uterus it had to be detached from the surrounding tissue and blood vessels. The bloods vessels feeding blood to and draining blood from the uterus and the ovaries had to be clamped and cut/litigated to be detached, to detach them for the uterus and ovaries so that these could be removed.
4. The complainant was not aware whether her ovaries also removed during the hysterectomy. Because the scan report taken on the device of the opposite parties 2 to 4 revealed that both ovaries not imaged. The complainants attendants on demand paid Rs.30,000/- towards hospitalization treatment, medicines, doctors’ fees and other charges, but no receipt was given. Meanwhile the complainant on 22.02.2015 developed high fever and due to severe infection was shifted to Medical ICU, with complaint of stomach pain. The Biopsy report showed impression leiomyma uterus with left tubel endometriosis (fibroid uterus is a benign tumor of uterus). The complainant underwent second surgery on 23.02.2015 by fixation of cholostomy bag. The multislice CT abdomen &pelvis scan report dated 23.02.2015, said Tear is visualized in left anterior wall of proximal sigmoid-just above the recto sigmoid junction. The complainants attendants came to know that surgery incision was from neck downwards to pelvis, resultant tear caused and cholostomy big was kept outside. Enquiries were replied that abdominal problems necessitated this surgery and complainant was asked to pay Rs.25,000/- was not given receipts.
5. The complainant was discharged on 06.03.2015. Even at time of discharge the complainant had fever. The complainant was advised to take prescribed medicine. On 07.04.2015 passing motion, complainant was shocked and greatly frightened to find motion coming through vagina. The complainant immediately contacted the opposite party, was again admitted on 08.04.2015. While the opposite parties 2 to 4 examined the complainant per vagina per anus a lot motion with pus peeped out and therefore scan advised by the doctors which were taken on 21.04.2015 and 08.04.2015. The doctors at 1st opposite party’s hospital informed the complainant that she was infected and it opens through the vagina suggested another 3rd surgery.
6. That colostomy 3rd surgery was done on 17.04.2015. Even after colostomy done to the complainant, blood, pus cells came through the vagina and the anus. Again the complainant was admitted and discharged. During this period Antibiotics were given and all through the complainant was to use sterile gauze, since there was discharge through the vagina.
7. The complainant was suffering great mental agony and on compulsion was to change for a day at least 20 sterile gauzes since there was discharge through vagina. The complainant was unable to move without napkin or gauze. The complainant suffered in great silence endlessly bearing the pain and agony caused after intake, motion came through colostoma. While sleeping on the bed, motion came through the colostema, resulted in cleaning of her body, entire house and bed besides other things.
8. That she had undergone surgery on 30.04.2015 for closing the rectovaginal fistula and scan was taken on advice. The scan report for rectovaginal fistula showed the left ovarian vein leaves from the end of the ovary (which lies inferior to the pelvicinlet, i.e inferior to the start of the sacrum (s1) at about S3 and joins the left renal vein (which lies between L1 and L2). Moreover the ovaries lie very close to the bladder and the length of uterus (from the baldder to kidney) is 10 inches. The uterus and left renal vein join the kidney at almost the same location (between L1 and L2). Thus the length of the kept renal ovarian vein in an adult woman is approximately 1 to 10 inches. This case if the abdomen was opened at the beginning of the operation, this problem would not have arisen and unnecessary effort to remove uterus through vaginal route would have been well avoided.
9. That even after this surgery the problem continues. The complainant was hospitalized many a times in between when problem did not stop. She was injected beatdine through tube into the rectum and colon and this was done daily till discharge. The complainant got admitted on 08.04.2015 for closure of colostomy and was discharged on 06.05.2015.
10. That even now she passes motion without any control, has to struggle and survive with napkin. Uncontrollable motion passes obstructs her mobility, affects her doing normal cores and remains invisible amidst society, unable to be a normal human being.
11.The complainant states that the opposite party had committed the following negligent acts:-
Failure to provide the case sheet and other documents on demand made
Failure to perform D & C operation prior to hysterectomy.
Failure to give epidural anesthesia
Failure to perform 1st surgery through abdomen.
No proper informed consent obtained for surgeries.
Unnecessary removal of ovaries and cervix.
Failure to engage vascular surgeon.
There was vein avulsion may the cause for rectovaginal fistula.
No surgical ICU.
12. That it became clear that complainant had developed a small communication with upper part of rectum and upper part of vagina. This is known as Rectovaginal fistula. The upper part of vagina and rectum are in close proximity to each other. Even a minor infection here can lead to small abscess formation which can result in rectovaginal fistula. In such a case it was advised that patient undergo preliminary colostomy followed by repair of fistula and then closure of colostomy.
13. The complainant absolutely believing the very assurances given by the opposite parties, opted for laproscopic surgery, which opposite parties negligence in doing such surgery had reduced to her to very pitiable state. That the acts of the opposite parties 1 to 4 who failed to do Laproscopic surgery proper, resultant surgeries done thereafter to minimize the damage caused which also failed, amounts to gross medical negligence and deficiency of service. The complainant had been driven to severe extremes, having incurred additional expenditure. The complainant is put to great mental agony and pain by these traumatic horrors caused by such gross negligence, which taunt her every day. Hence this complaint.
14.The contention of written version of the opposite parties 1to 4 is briefly as follows:-
The 1st opposite party does not admit the truth and correctness of any of the averments made in the complaint except those that are admitted herein and the complaint is put to the strict proof of the rest.
15.This opposite party submits that factually Mrs. Uma w/o.Kaliaperumal, the complainant has been attending Sir Ivan Stedeford Hospital for Diabetes, Blood Pressure and gynecological problems since February 2012. The complainant has suppressed these facts in her complaint. She may be directed to produce copies of the outpatient book. The outpatient book is handed over to the patient after recording the treatment on every visit and she is no possession of the same. She had visited this opposite party hospital department 56 times before getting admitted on 16.02.2015 and this is borne by records. For the same complaints she has consulted many private /Government hospitals without any relief before coming to stedeford Hospital. She had been advised to undergo surgical treatment in such previous hospitals. The complainant has conveniently suppressed to mention the previous records/opinions given by the private/Government hospitals. She had also mentioned during her visit to this opposite party’s hospital that she cannot afford to pay the cost required by the previous private hospital. She came to this opposite party’s hospital to avail the charitable service and undergo surgery as the surgery charges are nominal, being a charity hospital.
16. After a detailed examination with past history of five years of Diabetes and three years of hypertension, adequate control of the existing co-morbid conditions namely diabetes and hypertension were effected by appropriate specialist’s care. Considering the age of the patient(50 years –peri menopausal) and the sufferings of the patient with abdominal pain, abnormal and excessive bleeding not relieved by medical management given in JUPMER, SRMC and other private hospitals in Chennai, she was advised surgery as treatment of choice. Her co-morbid conditions of high blood pressure and uncontrolled diabetes were taken into consideration while taking the decision for surgical treatment. The medical management (i.e Hormonal in nature is not relevant to this patient as she had undergone two years of conservative management without any relief. It is also worth mentioning here that there is a possibility of the patient developing cancer in the body of uterus at a later date if the uterus is not removed along with cervix in a 50 years old (who is the premenopausal stage0 with co-morbid conditions like Diabetes mellitus and hypertension (corpus cancer syndrome).
The complainant was fully explained about the pros and cons of removal of uterus with cervix through laparoscopy assisted vaginal Hysterectomy (LAVH) and open abdominal Hysterectomy. The complainant and her husband opted for LAVH in the opposite party itself and they have given an informed consent prior to surgery in tamil language on 20.02.2015.
17. D &C (Dilation & Curettage) is not mandatory in all cases prior to Hysterectomy. D &C is only a diagnostic procedure to decide about the type of management. As the complainant had Diabetes and Hypertension (HTN) as co-morbid conditions in her menopausal stage, hysterectomy is considered as beneficial for this complainant. All procedures have been followed meticulously before surgery. Proper informed consent was obtained before each surgery and the consent documents are enclosed herewith.
18. This opposite party submits that all laporoscopy assisted by viginal Hysterectomies (LAVH) are to be done only under general Anaesthesia. The complainant is confused with open vaginal Hysterectomy with LAVH, because of some half baked knowledge taken mainly from internet. Both the procedures are entirely different. In LAVH, the patient has to be placed in head low position, which is not safe in spinal Anaesthesia which may result in respiratory failure endangering the life or the patient.
19. During operation the fallopian tube and the ovaries showed evidence of Endometriosis, and they were densely adherent to the adjoining organs, and hence the ovaries were removed along with uterus to prevent recurrence and to relieve the symptoms of abdominal pain. If the diseased ovaries are left without uterus in a peri menopausal women, there is every likelihood of developing cancer in the ovaries. The diagnosis of Endometriosis done during operation was confirmed by histopathological report (Biopsy Report) obtained post operatively which states clearly endometriosis. All specimen removed during operation were sent for histopathological exam routinely for further follow up. The complainant herself is stating, the HP report showed left Tubal Endometriosis with fibroid uterus and this goes to prove the procedure followed by the opposite parties to be correct. The bill for the second admission and stay in the hospital from 08.04.2015 to 06.05.2015 was Rs.32,437/- which was paid by her and receipt were given to her.
20. The statement of the complainant, that she passes motion without control is not related to surgery that was done, because control of motion is done by anal sphincter which was not touched in the two operations. Hence such allegations are false and motivated. The whole of case sheets are not given to the patient as per the policy of the hospital. The statement she demanded case sheet from the hospital is false. She had never demanded it and hence there was not necessary for the same.
21. It is very important to note that there is no need to subject all Laparoscopy Assisted Vaginal Hysterectomy patients to D&C. This needs to be decided on a case to case basis. Subjecting a patient to unnecessary anaesthesia for D&C is wrong. D&C is not going to change the management of this patient, and hence not needed. Further patient came to the OG OP only for surgery after being suggested surgery in various hospitals. Lap Assisted vaginal Hysterectomy (like any other lap assisted procedure)Needs to be done under general Anaesthesia. The patient opted for laparoscopy assisted surgery after fully informed about the pros and cons. The consent form given by the complainant and her husband states this very clearly.
22. Further since ovaries and the tubes of the complainant were not normal in this patient and found to be diseased (Endometriosis) not removing the ovaries and tubes will be aggravating the symptoms of pelvic pain later. Cervix is very much a part of uterus and not a separate organ. Cervix is removed which the uterus is removed. Further leaving cervix without removing it will expose the patient to risk of cancer. Cervical cancer is the second most common cancer next to breast cancer.
23. Further this opposite party specifically submits that an informed high risk consent was obtained and the laparotomy was done. As the colonic thermal injury was suspected during laparotomy, a colostomy was done. The complainant was discharged with a colostomy bag. Proper advice on the upkeep of colostomy bag was given. Patient failed to keep the colostomy bag clean post operatively and further advices were given in subsequent opposite party consultations. After giving sufficient time for the colonic thermal injury to heal, colostomy closure and re-anastomosis of the bowel was done successfully thereby normalcy as prior to surgery was restored. The complainant was passing motion via natural was and comfortable at the time of discharge. There was no recto vaginal fistula either during her hospital stay or at discharge. Proper care and efficient management of the complications saved the life of this patient. Further all bills were presented to her and payments were receipted with official receipts. She failed to pay Rs.32,306/- of the total bill of Rs.62,306/- for the first hospital admission. This payment is still pending.
24. As this kind of charitable treatment is being done only in this opposite party hospital, the complainant has chosen this opposite party hospital. As such the dispute raised by her after availing a highly charitable service, is totally unethical and untenable. Hence this complaint is liable to be dismissed.
25. At this juncture, the point for consideration before this Forum is :-
1. Whether there is any medical negligence which leads to deficiency of service on the part of the opposite party as alleged in the complaint?
2. To what other reliefs, the complainant is entitled to?
26. Written arguments filed by the opposite parties 1to 4and complainant side it was closed and oral arguments also adduced by both sides.
27. Point No:1:-
According to the averments of the complaint, it is seen that because of improper laparoscopy surgery was done by the opposite parties 1to 4 the complainant was compelled to change for a day at least 20 sterile gauzes since there was discharge through vagina and unable to move without napkin or gauze and suffered endlessly bearing the pain and agony caused after intake, motion pass through the colostomy and even motion without any control obstructs mobility, affects her doing normal chores and remains invisible amidst society and unable to a normal human being. Further, due to the gross negligence of the opposite parties during surgery and treatment and thereby suffered a lot of mental agony and loss and therefore the complainant is compelled this complaint.
28. On the other hand, it is contented by the opposite parties 1 to 4 in the written version that the complainant was having suffered for detailed history of five years and visited this hospital 56 times before getting admitted on 16.02.2015. Further, it is contented that the complaint was fully explained about the pros and cons of removal of uterus with cervix through laparoscopy assisted Vaginal Hysterectomy (LAVH) and open abdominal Hysterectomy and also D&C (Dilation & Curettage) is not mandatory in all cases prior to Hysterectomy and it is only a diagnostic procedure to decide about the type of management and all the procedure have been followed meticulously prior to surgery and the operation was done with utmost care and during operation the fallopian tube and the ovaries showed evidence of Endometriosis and hence the ovaries were removed along with uterus to prevent recurrence and relieve the symptoms of abdominal pain and therefore no medical negligence committed by the opposite parties.
29. At this juncture, it is needless to say that the complainant is having bounden duty to prove the allegations made in the complaint against the opposite parties 1 to 4 with reliable evidence before this Forum So, first of all this Forum has to be considered as to whether the complainant is proved the allegations averred in the complaint by means of proper evidence. Firstly, on careful perusal of the evidence of the complainant submitted through his proof Affidavit it is seen that on 14.02.2015 the complainant went to 1st opposite party hospital for abdominal pain and informed the opposite party of her earlier visits and consultations with doctors at Jipmer and Sri Ramachandra Hospital, Porur Chennai and after seeing of the medical records of earlier treatment the opposite parties 2 to 4 advised to undergo the surgery for removal of uterus. The medical report issued by the Jipmer hospital puducherry has out patient record for the complainant on 13.01.2015 and the case sheet was given by the Sri Ramachandra Hospital Porur Chennai are marked as Ex.A1 and Ex.A2 respectively.
30. It is further learnt that as per the advised of opposite parties 2to 4 the complainant admitted was as inpatient on 16.02.2015 and diagnosed for Dysfunctional Uterine bleeding shortly called “DUB” and without prescribed any medical therapy or hormone therapy the opposite party 2to 4 straightaway advised for Hysterectomy without explaining the benefit of removal of uterus through abdominal route or on the alternative routes, their comparative benefits. The complainant underwent LAVH on 20.02.2015. In the mean time the complainant was developed high fever due to severe infection immediately she was shifted ICU with complaint of stomach pain and the Biopsy report showed impression leiomyma uterus with left tubel endometriosis. The complainant underwent second surgery on 23.02.2015 by fixation of cholostomy bag and she was discharged on 06.03.2015 even at that time of discharge the complainant had fever. The discharge summery is marked as Ex.A3 and the multislice CT scans dated 23.02.2015is marked as Ex.A4. The Biopsy test is Marked as Ex.A5.
31. On further perusal it is noticed that on 07.04.2015 the complainant passing motion she was shocked and greatly frightened to find motion coming through vagina and immediately contacted the opposite party and she was again admitted on 08.04.2015 and for which scans were taken on 21.04.2015 and 28.04.2015 and the doctor informed she was infected and it is opens through the vagina suggested another third surgery colostomy and the same was done on 17.04.2015 even thereafter the blood, pus cells came through the vagina and the anus and discharge summary on 06.05.2015. The discharge summary is marked as Ex.A6 and the scans reports on 21.04.2015 and 28.04.2018are marked as Ex.A7 and Ex.A8 respectively and the case sheet some operation is marked as Ex.A9. It is further stated that initially she was paid towards hospital treatment some etc and no receipt was given and thereafter the complainant had paid Rs.5,000/-,10,000/-,3,000/-,7.000/-,5,000/-,2500/-,5,00/-15,000/-,on different dates towards advance and the receipt for the said payment are marked as Ex.A10(s). Even thereafter the complainant was paid a sum of Rs.25,000/-for which no given any receipt. The laboratory diagnostic report given by the 1st opposite party hospital is marked as Ex.A11(s). The complainant stated that the act of the opposite parties 1to 4 who have failed to do laparoscopic surgery proper, resultant surgeries done which clearly amounts gross medical negligence and deficiency service to caused great mental agony and pain to the complainant.
32. While being so, on going through the evidence against on the side of the opposite parties 1 to 4 it is narrated that it is not correct to say that the opposite parties 1to 4 were not followed the procedure before the surgery and no consent obtained before surgery. In fact the proper consent was obtained from the complainant as well as from her husband and also by explaining the pros and cons of removal of uterus with cervix through laparoscopy assisted vaginal Hysterectomy (LAVH) and open abdominal Hysterectomy. The consent given by the husband of the complainant and the complainant are marked as Ex.B5(s). Further it is reported that the D&C (Dilation &Curettage) is not mandatory in all cases prior to Hysterectomy and it is only a diagnostic procedure to decide about the management and further during the operation the fallopian tube and the ovaries showed evidence of Endometriosis and they were densely adherent to the adjoining organs, and hence the ovaries were removed along with uterus to prevent recurrence and to relieve the symptoms of abdominal pain. If the diseased ovaries are left without uterus in a peri menopausal women, there is every likelihood of developing cancer in the ovaries and consequently the diagnosis of Endometriosis done during operation was confirmed by Histopathological Report (Biopsy Report) obtained post operatively which states clearly about the endometriosis and proved the procedure followed by the opposite parties is correct the entire case sheet dated on 16.02.2015 and 08.04.2015 are marked as Ex.B1 and Ex.B3(s).
33. Furthermore, it is reported by the opposite parties that the total bill for the first hospital admission from 16.02.2015to 06.03.2015 is Rs.62,306/- and of which the complainant paid Rs.30,000/-and the balance of Rs.32,306/- was paid by the hospital as she requested for concession on humanitarian grounds and bill for the second admission from 08.04.2015 to 06.05.2015 was of Rs.32,437/- which is paid by the complainant and the same are marked as Ex.B2 and Ex.B4 respectively. Therefore there is no negligence committed by the complainant and in fact the opposite parties 2 to 4 as followed all the procedure before surgery and also proper consent obtained from the complainant as well as her husband.
34. At this juncture, on careful perusal of the rival submissions put forth on either side it is crystal clear that there is no dispute that the complainant went to 1st opposite party’s hospital for abdominal pain along with her prior medical reports issued from the Jipmer hospital, puducherry and the Sri Ramachandra Hospital, porur Chennai and on consulting as advise of the opposite parties 2to 4 the complainant was admitted on 16.02.2015 for necessary surgery was done by the opposite parties 2to 4 for removal of uterus and thereby LAVA on 22.02.2015 and discharged on 06.03.2015 and in the meantime the complainant suffered certain problem and therefore the complainant underwent a second surgery on 23.02.2015 by fixation of colostomy bag and thereafter she was discharged on 06.03.2015 and this facts have been shown in the Ex.A3 and Ex.B1 the case sheet issued by the opposite parties hospital.
35. More so, it is an admitted fact that on 07.04.2015 while the complainant passing motion she was shocked and greatly frightened to find motion coming through vagina for which she was again admitted on 08.04.2015 and discharged on 06.05.2015 seen from the Ex.A6 and Ex.B3 the case sheet. In the meantime, it is seen that the third surgery done on 17.04.2015 and abdominal scans have been taken on 21.04.2015 and 28.04.2015 through Ex.A5 and Ex.A8 and the case details revealed clearly through Ex.A9. Regarding there facts, there is no dispute on either side.
36. At the outset, the learned counsel for the complainant would submit that the opposite party is not followed the correct procedure of medical test before surgery for the removal of the uterus. Similarly no proper consent taken by the 1st opposite party for surgery and fixed the different date of surgery without following the procedure and also the removal ovaries along with uterus by not obtaining necessary consent either from the complainant or the husband of the complainant or any another relatives who were present at the time of surgery which clearly leads to gross medical negligence on the part of the opposite parties. In order to strengthen the same the learned counsel is relied upon the following decision.
III (2007) CPJ 189 (NC)
Saroj Chandhoke ……Complainant
//Vs//
Ganga Ram Hospital &another …..Opposite parties.
Held that series of operations performed - Dilation and Curettage (D&C) carried out at time of hysterectomy not on earlier day oral consent obtained from complainant, patient informed to be tentatively prepared for abdominal hysterectomy, rejected. Further, op transgressed authority and consent given by patient for TAH, removed both ovaries and fallopian tubes without knowledge and consent of patient - apparent deficiency in service on part of ops -Held joint and severally liable - compensation of Rs.5 lakh awarded. No consent was taken for hysterectomy through vaginal route, not for removal of ovaries not for removal of kidney.
In our view, the aforesaid contention cannot be accepted. It is to be stated that as contended by Dr.Bhandari, she is an experienced Gynaecologist. Hence, she was expected to take express informed consent to perform hysterectomy via vaginal route. Further, it is difficult to accept her contention that because the general consent is taken, she can perform the operation in the way she likes. General consent is while operating if some difficulty or any contemplated difficulty arises, then she can adopt such further of alternative operative measures or treatment to save the life of the patient or for patient’s benefit. But, that would not give her any discretion to do whatever she chooses. This would also be against the medical ethics, as quoted above and the purpose for which express consent is obtained.
It has been pointed out that, in medical literature, for BSO, i.e Bilateral Salpingo Oophorectomy, it should be specifically and separately mentioned by the doctors, and also requires the specific consent of the patient. The medical literature also states that even where ovary removal is recommended for prophylactic reasons, I,e where there is no apparent problem with the ovaries but they are advised to be removed to prevent future possibility of ovarian cancer, the consent of the patient for removal of ovaries should always be obtained.
From the above discussion, it can be concluded that entire deficiency in service arises because of removal of ovaries and the mishap occurred at that time. If ovaries were to be removed, the doctor ought to have informed the patient in advance, but that has not been done.
In the present case, neither the Hospital not the Doctor has given any reason as to why ovaries were removed without taking consent of the complainant.
For the reasons discussed above, there is apparent deficiency in service on the part of the opposite party Hospital.
II (2007) CPJ 216 (NC)
S.Tamil selvi …..Complainant.
//Vs//
Dr.Sooriya kala & anothers ….Opposite parties.
III (2009) CPJ 304 SCDRC, WEST BENGAL.
Reena Bhattacharya ….Complainant
//Vs//
Narayan Chowdhury (Dr.) & anothers. ….Opposite parties.
Hysterectomy operation -D/C operation mandatory prior to conducting of hysterectomy operation.
Held that Prior to conducting such operation he had done D/C operation on the complainant which is a pre-requisite before undertaking hysterectomy operation. However, since the said operation turned to be in fructuous as the relevant report could not be prepared by the laboratory due to paucity of tissues extracted during the operation, but this was not done. Op No.1 himself in his evidence averred that D.C operation is a must and was done primarily as a diagnostic protocol and also as a preliminary step of the definitive management…..
Particularly when the said D/C operation is considered to be a preparatory operation for hysterectomy and he himself advised for it. In other words, the D/C operation is mandatory and the doctor going for hysterectomy without such report takes unnecessary risk to the detriment of the patient. Dr.S.K.Ghosh in his expert evidence averred that the way D/C operation was done smacks of carelessness/negligence on the part of op No. In this context we are inclined to refer to the decision in the first appeal No.172 of 2000, Dr.V.Pahwa V.Surindra Mohan Gohse, wherein the operating eye surgeon skipped B-scan which he himself prescribed and which is considered to be a pre requisite before taking up eye operation.
When the appellant himself admits this important lapse no other expert evidence is required. “In the present case, the OP No.1 himself suggested for D/C operation, which was done, but without any result and in spite of repeat test advised by the laboratory he skipped the test and he undertook the hysterectomy operation with preparing a report on the entire endrometrium for having a clear picture of the uterus and the bladder.
These injuries/damages in the bladder developed into several vescico-vaginal Fistulae (VVF) causing incontinence of urine as happens.
(2013)CPJ 6 (SC)
A.Srimannarayana …Appellant
Versus
Dasari Santakumari & Another ….Respondents
The judgment in Jacob Mathew (Supra) is clearly confined to the question of medical negligence leading to criminal prosecution, either on the basis of a criminal complaint or on the basis of an FIR. The conclusions recorded in paragraph 48 of Jacob Mathew (supra) leave no manner of doubt that in the aforesaid judgment of court was concerned with a case of medical negligence which resulted in prosecution of the concerned doctor under section 304 A of the Indian penal code.
The aforesaid observations leave no manner of doubt that the observations in Jacob Mathew (supra) were limited only with regard to the prosecution of doctors for the offence under section 304 A, IPC.
2015 CPJ (1) (NC)
Kalpana …….Complainant.
//Vs//
Dr.K.Ramalakshmi & another ….. opposite parties.
Held that in the present case, the op1 Doctor while conducting the MTP caused perforation in the uterus as well as in the intestine and hence, she is guilty of medical negligence because she caused resulting damage even when exercising ordinary skills. The facts of the instant case make it clear that no previous complications were there, given the condition of the complaint.
From the above judgment also, it is very clear that the op1 to Op4 as medical professional was expected to bring a reasonable degree of skill and knowledge and was expected to exercise a reasonable degree of care. From the damage done to the patient, it cannot be stated by any stretch of imagination that the reasonable degree of care was shown by the doctors in treating the patient and hence, it is a clear-cut case of medical negligence.
37. Further it is submitted by the complainant that in respect of hysterectomy operation D&C operation is mandatory prier to conducting the hysterectomy operation but in this case the opposite parties have failed to conduct such mandatory D&C operation has not been done which is a peri request before undertaking above said hysterectomy operation and the same is categorically admitted by the opposite parties which clearly amounts for medical negligence. At the outset in respect of the main lapse done by the opposite parties during surgery for hysterectomy for the complainant, is
1. The mandatory peri request the D&C has not been done.
2. Necessary explain consent has not been obtained from the complainant before the removal of the ovaries during hysterectomy operation for the removal of uterus. In respect of the above lapses on the side of the opposite parties it is clearly admitted that the said D&C was not conducted and similarly a specific consent has not been obtained for the removal of ovaries but at the same the reason stated for the same is that since the complainant has been suffered for the abnormal pain for long time for treatment some other hospital before admitting in the 1st opposite party hospital and also having hypertension and diabetic the complainant was advised for surgery by means of laparoscopy for the removal of uterus and for that the complainant was clearly informed the high risk at the said operation and consent also obtained.
38. Further it is narrated that during the hysterectomy operation it is found that the fallopian tube and ovaries showed evidence of endometriosis and they were densely adherent to the adjoining organs, which leads to the danger in cancer and therefore by getting over consent the said fallopian tube and ovaries were removed with good intention to save the life of the complainant only, but not for otherwise. Furthermore, it is narrated that the D&C is not mandatory in all cases prior to hysterectomy and it is only diagnostic case provision to decided about the management and therefore since because not done the D&C no way affect the health of the complainant and in fact the opposite parities 2to 4 have followed correct procedure during the hysterectomy operation by means of laparoscopy method as prescribed in the medical text and not committed any gross medical negligence as alleged by the complainant and in order to substantiate their version, relied upon the decision held in jocob Mathew case.
39. At this juncture, as discussed above in the previous paragraph, on going through the rival submissions put forth on either side, the observation made in the decision held by the Apex Court, it is crystal clear that the D&C is a mandatory one prior to the hysterectomy operation but it is not done by the opposite parties 2 to 4. Therefore the plea taken by the opposite parties that D&C is not a mandatory one in all case prior to the hysterectomy operation but it is only a decision holds not good. Next, regarding the non- obtaining the express consent before the removal of ovaries is no way wrong on the side of the opposite parties as stated by the opposite party also is devoid of merits. In this regard as observed in the decision 3(2007) CPJ 189 (NC) and 2007 CPJ 2016 (NC) it is crystal clear that removal of both ovaries and fallopian tubes without the knowledge and consent of patient is apparent deficiency in service on the part of the opposite parties.
40. In light of the above other facts and circumstances and observations held in the decisions, this forum can easily come to conclusion without any hesitation that there is a medical negligence committed by the opposite parties 2to 4 in the 1st opposite party hospital which certainly leads to deficiency of service on the part of the opposite parties 1to 4 and the same have been proved beyond any reasonable doubt. Thus the point no 1 is accordingly.
Point.2:-
41. The complainant sought relief to repay of Rs.75,000/- for the complainant hospital expenses, medicines and other charges and thereby it is duty of the complainant to prove the above expenses with relevant receipts. At this point of time, it is an admitted fact that the payment of Rs.30,000/- at the time of first instance is accepted by the opposite parties and therefore the admitted fact need not be proved further, In such circumstances, as per the Ex.A10(s) the total amount paid by the complainant is only of 48,000/- . If it is so, as per the Ex.B2 and Ex.B4(s) the total cost of expenses for two surgeries for the first operation is Rs.62,306/-, there is a balance amount to be paid by the complainant of Rs.32,306/-. Whereas as per the Ex.B4(s) the total cost for the second surgery 32,437/- and the said amount fully paid by the complainant which are all admitted fact. As per the above calculation, it is crystal clear that the total amount paid by the complainant is only of Rs 62,437/-. At this juncture, the complainant is entitled for the refund of the above said amount Rs.62,437/- only with reasonable compensation for the having suffered mental agony and pain due to the deficiency of service on the part of the opposite parties 1to 4 and reasonable cost. Thus the point no 2 is answered accordingly.
In the result, this complaint is allowed in part. Accordingly, the opposite parties1 to 4 jointly and severally are directed to pay the actual amount paid by the complainant towards hospitalization, treatment, medicines etc. to the tune of Rs.62,437/-( Sixty two thousand four hundred thirty seven only) as per the bills filed before this Forum and also to pay a sum of Rs.50,000/- (Fifty thousand only) in toto towards compensation for causing mental agony and pain due to the deficiency of service on the part of the opposite parties 1to4 and also to pay a sum of Rs.10,000/-(Ten thousand only) towards cost of litigation expenses (Total Rs.1,22,437/-)
The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, this said amount shall carry interest at the rate of 9% per annum till the date of payment.
This order was dictated by the president to the steno-typist, typed by him corrected, signed and pronounced by us in open Forum, today on this day 27th day July 2018.
Sd/- Sd/-
MEMBER PRESIDENT
List of document filed by the complainant:-
Ex.A1 | 13.01.2015 | Out patient record | Xerox |
Ex.A2 | 05.02.2015 | Case sheet | Xerox |
Ex.A3 | 16.02.2015 | Discharge summary | Xerox |
Ex.A4 | 23.02.2015 | Mulitslice CT | Xerox |
Ex.A5 | 25.02.2015 | Biopsy | Xerox |
Ex.A6 | 08.04.2015 | Discharge summary | Xerox |
Ex.A7 | 21.04.2015 | Whole abdomen scan report | Xerox |
Ex.A8 | 28.04.2015 | Whole abdomen scan report | Xerox |
Ex.A9 | | Case details | Xerox |
Ex.A10 | | Medical bill (series) | Xerox |
Ex.A11 | | Lab test reports | Xerox |
List of document filed by the opposite parties1to 4:-
Ex.B1 | 06.03.2015 | Case sheet of the complainant | Xerox |
ExB2 | | Statement of account of the complainant (bill) | Xerox |
Ex.B3 | 06.05.2015 | Case sheet of the complainant | Xerox |
Ex.B4 | | Statement of account of the complainant (bill) | Xerox |
Ex.B5 | | Consent form obtained from the complainant. | Xerox |
Sd/- Sd/-
MEMBER PRESIDENT
