Tamil Nadu

StateCommission

A/399/2014

DR. R. SAROJNI - Complainant(s)

Versus

ARUNA - Opp.Party(s)

09 Jun 2022

ORDER

 

 

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

             Thiru.R.VENKATESAPERUMAL     … MEMBER

 

F.A. No.399 of 2014

 

(Against the Order, dated 10.09.2014, in C.C. No.13 of 2009,

on the file of  the DCDRF, Nagapattinam)

                                                    

                               Orders pronounced on:  09.06.2022

 

Dr.R.Sarojini, MBBS, DGO,

Venkatesh Nursing Home,

No.134, Pattamangala Street,

Mayiladuthurai,

Nagapattinam District             … Appellant/Opposite Party

 

vs.

 

Tmt. Aruna,

W/o.Anandharaj,

Villi Nagar,

Ammapettai,

Chidambaram

South Arcot District.                 … Respondent/Complainant

 

             For Appellant           :  M/s.AAV Partners

             For Respondents      :  M/s.R.Karunakaran

 

This First Appeal came up for final hearing on 22.04.2022 and, after hearing the arguments of the counsels for the parties and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

 

O R D E R

 

R.Subbiah, J. – President.

 

             The appellant herein challenges the Order, dated 10.09.2014, passed by the DCDRF, Nagapattinam, in C.C. No.13 of 2009, whereby, the District Forum partly allowed the Complaint filed by the respondent herein by holding that, due to the medical negligence and lack of due care & attention on the part of the appellant herein/OP-Doctor in providing medical treatment, the respondent herein/complainant had suffered Vesicovaginal Fistula associated with urinary incontinence and ultimately, directed the appellant herein to pay the respondent/complainant a sum of Rs.4,00,000/- as compensation for the sufferings, mental agony, hardship etc., besides a sum of Rs.5,000/- as litigation costs, within 45 days from the date of the order, failing which, to pay the said sum along with interest @ 12% p.a. from the date of the order till the date of realization.

 

             2. For the sake of convenience, the parties shall be referred to in the course of this order, as per their respective rankings before the District Forum.

             In brief, the case of the complainant, as given in the complaint filed before the District Forum, is as follows:-

             The complainant was suffering from uterine problem, for which, on 28.04.2007, she approached the OP/Gynecologist, who advised her to undergo abdominal hysterectomy for uterus removal.  The complainant underwent the said surgery/hysterectomy in the Nursing Home of the OP on 29.04.2007 and she was discharged on 05.05.2007.  Thereafter, since she developed complications of white discharge and blood in urine with pain in lower abdomen, she visited the OP, who took an ultrasound scan by asking her to take plenty of water and, at that time, she had urination without any control, for which, the OP told that the same might be the complication of hysterectomy and that she would be normal after a few days.   She also advised her to visit one Dr.Sivakumar, Urologist, at Tanjore.   Accordingly, she went to  Dr.Sivakumar at Rohini Hospital, Tanjore, where she received treatment as in-patient from 28.05.2007 to 01.06.2007, but the urinary incontinence could not be contained, hence, she was referred to Vijaya Hospital at Chennai where she consulted Dr.Chinnasamy who found that the urinary incontinence was due to the injury caused to the bladder during the course of hysterectomy undergone by the complainant.  When the complainant informed the same to the OP, she did not accept the same and asked her to meet Dr.Michael at MVK Nursing Home, Tanjore. Accordingly, the complainant met the said Doctor, who confirmed that, during the hysterectomy procedure done by the OP, there was a rupture caused in the bladder, for which, he performed a surgery to repair the Vesicovaginal Fistula (VVF) associated with urinary incontinence.  Even after the said surgery, the complainant still had the problem, whereupon, she again approached the OP, who, on realizing the fact that the problem being faced by the complainant was due to the injury caused to the bladder during the course of hysterectomy performed by her, gave a letter and asked the complainant to meet Urology Specialist-Dr.Rajamaheswari at Chennai and further told that the entire expenses would be borne out by her. At that time, she also gave Rs.25,000/- for expenses through complainant’s brother – Boobalan.  After the treatment given by Dr.Rajamaheswari also, she was still suffering from the same problem and ultimately, she took treatment as in-patient from 15.11.2007 to 07.12.2007 at Dr.Raja Annamalai Hospital at Chidambaram where VVF Repair Open Surgery was performed by Dr.Jayakar, however, the problem could not be rectified.  The reason for the whole sufferings is only due to the medical negligence on the part of the OP in causing injury to the Bladder while doing hysterectomy and hence, she issued a legal notice, for which, the OP replied by giving false reasons. Hence, she filed the complaint, seeking the District Forum to direct the OP to pay her Rs.8,65,000/- as compensation for the service deficiency, Rs.1,00,000/- for mental agony and Rs.25,000/- for travel expenses incurred to visit a number of Hospitals.

 

             3. The OP resisted the complaint by filing a written version, wherein, among other things, it is stated that the complainant failed to make out any prima facie case of negligence and  produce any acceptable documents in proof of the allegations; that, as per the rulings of the Apex Court, the complainant has to submit herself before a qualified doctor or panel of eminent doctors to bring out the medical negligence alleged by her; that the OP had filed necessary application on the first date of hearing on 11.01.2010 itself; that, while denying all the allegations as false and untrue, she reserves her right to file any additional counter after the report of the qualified doctor or the panel of Doctors; that the amount of compensation claimed by the complainant is highly excessive; and that the complaint is liable to be dismissed with exemplary costs.

             However, no additional written version was filed by the OP before the District Forum.

 

             4.  To substantiate the claim and counter-claim, the parties filed their respective proof affidavits and, while the complainant marked 23 documents as Exs.A1 to A23,  the  OP did not choose to file any document on her side.  The District Forum, after considering the materials made available, held that, in view of the delicate nature of hysterectomy and the impending danger of causing damage to the urinary bladder during hysterectomy, the OP should have had an Urologist by her side so that in case of any contingency of causing damage to the urinary bladder, it could have been set right by the Urologist.  By further holding that undoubtedly, the urinary bladder of the complainant was damaged only by the negligence of the OP during the hysterectomy, as a result of which, she suffered Urinary Incontinence, the District Forum ultimately allowed the complaint in part as aforementioned and, aggrieved thereby, the OP has come up with the present Appeal.  

 

             5. Learned counsel for the Opposite Party/appellant would submit that the complainant/patient came to the OP on 19.04.2007 complaining menorrhagia and also inability to hold urine for a long time.  After complete pelvic examination and, on the basis of the recent scan brought by the patient, it was found that she had fibroid in uterus and hence, abdominal hysterectomy was advised for removal of the uterus. On 28.04.2007, she was admitted in the Nursing Home of the OP and on 29.04.2007, the surgery was performed successfully.  During her stay in the Nursing Home as in-patient till the time of discharge on 05.05.2007, the patient was well taken care of by the OP and she had no complaint including dribbling of urine through vagina/urinary incontinence.  On 22.05.2007, when she came for review, the surgical wound was cleaned and dressed and, at that time also, she had no complaint of urinary incontinence.  On 23.05.2007, again the complainant visited the OP with complaints of fever, bilateral loin pain and passing blood stained urine and she was advised to take a scan which revealed renal stones.   Even at that time, there was no complaint of urinary incontinence.  Thereupon, the OP referred the patient to Rohini Hospital at Tanjore for consultation with Dr.Sivakumar, who specifically noted ‘ureter draining well’ and referred the patient to Dr.Chinnasamy/Urologist at Vijaya Hospital, for further evaluation only for the obstruction in Pelvi Ureteric Junction. While so, after about 6 weeks from the date of hysterectomy, the patient came and informed the OP that she had undergone a procedure for removal of kidney stones and that there was a small Vesicovaginal fistula (VVF), whereupon, the OP advised the patient to consult Dr.Rajamaheswari/Uro-Gynecologist who has done numerous VVF repairs successfully. As the complainant stated that she had no money, on humanitarian basis, she lent her Rs.10,000/-  and also undertook to pay the cost for the VVF repair, as the entire family of the complainant was well known to the OP for more than 15 years.  According to the learned counsel, the above details would go to show that, only after a span of about 6 weeks from the date of hysterectomy, the complainant had come to her with the complication of VVF and it means that the said complication was not due to the hysterectomy procedure done by the OP rather it was because of compromised blood supply to the urinary track leading to tissue necrosis and formation of fistula.  In other words, the urinary incontinence was due to the untreated kidney stones for a long time that had caused VVF and the same is in no way connected to the Hysterectomy done about three months ago.  To substantiate the same, the OP relied upon relevant Medical Literature, however, the District Forum skipped the same from consideration and rushed to fasten the liability on the OP.  Learned counsel has relied upon a decision, dated 31.08.2020, of the NCDRC in Shah Hospital & others vs. Daljeet Kaur & another to contend that fistulas occur at a delayed stage due to trivial thermal injury and the necrosis of the tissue like the present case as the patient has been suffering from pelvic uretero junction obstruction and kidney stones which remain untreated for a long term that ultimately led to necrosis and fistula in the patient and hence, it was not due to hysterectomy.  If it is otherwise, the complainant ought to have let in expert evidence to prove the allegations levelled against the OP and, having failed to do so, the District Forum ought not to have charged the OP with service deficiency connected to the hysterectomy that was performed in absolute compliance with medical standards and norms.  Inasmuch as the OP had rightly diagnosed the patient and prudently referred her to the specialists concerned at the right time for the urological complications suffered by her, no service deficiency can be attributed to her for the VVF which was not connected to the hysterectomy performed by her.  All such vital aspects have not been taken into consideration by the District Forum and hence, the impugned order is rendered erroneous and liable to be set aside by this Commission.

 

             6. Per contra, learned counsel for the complainant submits that the OP cannot wriggle out from the liability by contending that the VVF was caused due to necrosis of the tissue particularly when there is no concrete documentary evidence adduced to substantiate such contention. By referring to Ex.A11 letter written by the OP to Dr.Rajameheswari, learned counsel would state that, in the said letter, the OP, while referring the complainant for VVF repair surgery, undertook the full responsibility to meet the entire expenditure for the treatment to be given to the complainant.  According to him, if the major complication suffered by the complainant was not due to the medical negligence on the part of the OP, she would not have addressed such a letter to the Uro-Gynecologist/Dr.Rajamaheswari. A doctor doing hysterectomy should bestow wholesome care and attention during the time of surgery so as to avoid causing any injury to the urinary bladder, but, in this case, the OP failed to exercise such care and attention, as a result of which, the urinary bladder of the complainant was negligently punctured causing VVF and the said complication came to be detected only during the examination by Dr.Chinnasamy of Vijaya Hospital.  The damage to the bladder should have been set right by the OP without any delay, but, due to the callous attitude of the OP, the patient was often driven from one corner to the other for proper diagnosis and requisite repair process.  But the endeavour of the OP both before the District Forum as well as this Commission is only to escape from the liability by citing one reason or the other.  The District Forum, before fixing the liability, considered in detail all the points raised by both sides and rendered its findings on logical reasons and the impugned order does not call for any interference; hence, the present appeal is liable to be dismissed.

 

             7. Having heard the submissions of both sides, at the outset, it must be pointed out that, without any pleading, no submissions and arguments, however elaborate and convincing they are, can tilt the scales favourably.  In the case on hand, the version filed by the OP is so bald and vague that it reflects not even a single detail projected during the course of submissions.  The OP has miserably failed to file a proper version with requisite details about the medical condition of the patient, details of the tests taken, treatment suggested in the Nursing Home, procedure undertaken by the OP in line with prescribed medical norms, negative factors against the complainant, etc.  When the OP miserably failed in that regard, she has no locus standi now to argue on the ground that non-examination of medical expert by the complainant is fatal to her case.  Although it is primarily argued by the OP that, even on 19.04.2007, when the complainant had visited the OP with the complaint of Menorrhagia and also inability to hold urine for a long time, no evidence is adduced for the same.  On the contrary, the case record of the complainant issued by the OP and came to be marked at the instance of the complainant as Ex.A1, dated 28.04.2007,  only mentions ‘Fibroid Ut” and nowhere, it has any noting or entry about urinary problem.  If really the complainant had complained of any urinary discomfort at that time, as a prudent doctor, she should have simultaneously referred her for examination by an Urologist and, only after a combined clinical study, she should have taken up the surgical process.  Further, according to the OP, for doing hysterectomy also, she did not  advise for any scan and she only relied upon a scan that was already taken by the complainant. As already stated, since according to her, the patient was also having urinary problem even on 19.04.2007, she should have taken tests covering both the complaints for giving a full & complete treatment, however, that was not done.  Having dealt with other similar cases of this nature, we are aware of the fact that VVF is a common complication of both abdominal and vaginal hysterectomy and that reported rates of ureteral injury are higher for abdominal hysterectomy than for vaginal hysterectomy. Therefore, it is always expected of a surgeon performing hysterectomy to be more precise and extraordinarily cautious in avoiding injury to bladder/ureter that has close proximity to uterus.  It is seen here that, after the hysterectomy, the patient visited the OP on 22.05.2007 for dressing the surgical wound and on 23.05.2007 with urinary infection for which, she was advised to meet Dr.Sivakumar, who after giving medication, referred her  to Vijaya Hospital, where she underwent stone removal treatment from Dr.Chinnasamy. If the problem was only due to renal stones, there was no necessity for the complainant to once again visit the OP after stone removal by Dr.Chinnasamy.  From Para No.8 of the written arguments of the OP, we find that, it was only after stone removal, for the first time, VVF was confirmed by the OP.  This would clearly go to show that the OP did not take any post-operative test to ascertain that the patient was also suffering from VVF as a result of hysterectomy.  In such circumstances, the OP cannot say that the complainant belatedly approached her with VVF and that the reason for the same is necrosis of the tissue. On the contrary, it is the OP, who belatedly found out the VVF only after stone removal and till that time, the patient was suffering both from renal stones as well as VVF.  Gripped by panic and fear over the negligence on her part in doing hysterectomy that resulted in VVF to the patient, she herself volunteered to bear the entire medical expenses for the treatment at the hands of Uro-gynecologist/Rajamaheswari.  At this juncture, it is apt to extract below the contents of the OP’s handwritten letter under Ex.A11, dated 02.08.2007,

          “ I spoke to you over the phone on 31^st July about my patient Smt.Aruna who has a V.V.F after abdominal hysterectomy done on 8.4.2007.   ….. She has consulted Dr.Chinnasamy of Chennai and Dr.Michel of Tanjavur.  They advised her the repair of V.V.F. I have advised her to consult you.

          Kindly do the best for her and I will take the responsibility of payment for all the procedures done by you. …”

In the above letter written by the OP, she clearly conveyed that she was referring her patient/complainant to undergo a repair surgery for VVF which is the common complication that arises from hysterectomy and further, she undertook to bear the entire costs of the procedure. The said writing also reveals that both the other Doctors had already advised the patient undergo VVF repair.  Thus, it is clear that the OP belatedly awakened to the actual problem/VVF only after removal of the renal stones by Dr.Chinnasamy. As already stated, if the OP had subjected the patient to a complete test before doing the procedure or at least at the time of discharge, she could have avoided the damage or at least minimized the complications and, by failing to do so, medical negligence is apparently visible on  her part.  The District Forum has, in fact, considered in detail the points formulated, arrived at a correct finding and awarded a reasonable compensation payable by the OP.  As such, there is no scope for interference by this Commission.

 

             8. In the result, the Appeal fails and it is dismissed, confirming the order, dated 10.09.2014, passed by the DCDRF, Nagapattinam, in C.C. No.13 of 2009.

 

R.VENKATESAPERUMAL                                           R.SUBBIAH, J.

MEMBER                                                                             PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/JUNE/2022.