KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. APPEAL Nos. 194/2009 & 196/2009 JUDGMENT DATED: 25-03-2010 PRESENT: JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT APPEAL No. 194/2009 1. C. Unneen, The Managing Director, : APPELLANTS Al-Shifa Hospital and Scanning Centre, Perinthalmanna. 2. Dr. Rani B Chitoor, Vengara Nursing Home, Vengara P.O., Malappuram. (Rep. by Adv. Sri. M.C. Suresh) Vs 1. C. Sudha, W/o R. Radhakrishnan, House No. 14, Magatha, : RESPONDENTS KSHB Housing Colony, Perinthalmanna P.O., Malappuram District. 2. Dr. Saju Xavier, Gastro Entrologist, M/s Al-Shifa Hospital and Scanning Centre, Perinthalmanna. 3. Dr. Cherian Joseph, Surgeon, M/s Al-Shifa Hospital and Scanning Centre, Perinthalmanna. APPEAL No. 196/2009 C. Sudha, W/o R. Radhakrishnan, House No. 14, ‘MAGATHA’, : APPELLANT KSHB Housing Colony, Perinthalmanna P.O., Malappuram District. (Rep. by Adv. Sri. S.J. Rajaprathap & others) Vs 1. M/s Al-Shifa Hospital and Scanning Centre, Perinthalmanna represented by its Managing Director, Sri. C. Unneen, : RESPONDENTS Perinthalmanna P.O. 2. Dr. Rani B Chittur, consulting Gynecologist, M/s Al-Shifa Hospital and Scanning Centre, Perinthalmanna. 3. Dr. Saju Xavier, Gastro Entrologist, M/s Al-Shifa Hospital and Scanning Centre, Perinthalmanna. 4. Dr. Cheriyan Joseph, Surgeon, M/s Al-Shifa Hospital and Scanning Centre, Perinthalmanna. (R1 & R2 rep. by Adv. Sri. M.C. Suresh) COMMON JUDGMENT JUSTICE SHRI. K.R. UDAYABHANU: PRESIDENT The appellants in Appeal No.194/09 are opposite parties 1 and 2 in OP No. 137/00 in the file of CDRF Malappuram. Opposite parties 1 and 2 the hospital and Gynaecologist are under orders to pay a sum of Rs.1,55,000/- as compensation and cost of Rs.2,500/-. The appellant in Appeal No.196/09 is the complainant in the OP who was sought for enhanced compensation and interest which has not been granted. 2. The complainant in the OP has sought for a compensation of Rs.4.lakh and interest for the alleged lack of care and negligence on the part of the opposite parties ie the hospital, Gynaecologist, the Gastroenterologist and the Surgeon. The Forum exonerated the Gastroenterologist and the surgeon and ordered the hospital and the doctor to pay the amount of compensation. It was found that it was on account of the negligence of the 2nd opposite party/Gynaecologist that the complainant sustained perforation of the ileum that resulted in leakage of the faecal matter etc that resulted in peritonitis and septicemia and had to undergo multiple surgeries and prolonged hospitalization. 3. The evidence adduced consisted of the testimony of PWs 1 to 3, DW1, Exts.P1 to P10 series, Ext.B1, Exts.X1 to X5. 4. It is seen from the documents produced and from the pleadings that the complainant was admitted at the 1st opposite party hospital on 19/5/1999 as advised by the 2nd opposite party/Gynaecologist for hysterectomy. She underwent hysterectomy under spinal anaesthesia on 20/5/1999. On 21/5 and 22/5 she had no particular problems. But on 23/5 the 3rd day of the surgery she had vomiting and epigastric pain. The same continued on 24/5 as well. On 24/5 she was examined by OP3 the Gastroenterologist and medicines prescribed. On 26/5 it appeared that the problems subsided and on 27/5 she was discharged at about 12.30 noon. On the same day at about 10.pm she was readmitted on complaints of pain and vomiting. Her general condition was noted as poor. OP3 the Gastroenterologist on examination diagnosed it as duodenal perforation. On the early morning at 4.45 am on 28/5/1999 she underwent laparotomy as well as ileostomy. The Surgeon/OP4 noted post operative peritonitis and contamination of the peritoneal cavity was suspected. Faecal matter was removed and toilet done. On 3/6 she was referred to West Fort Hospital, Thrissur and on the same day she was admitted at West Fort Hospital and underwent laparotomy. It was found that she is having peritonitis and septicemia. After heavy medication she was discharged on 27/6 and readmitted on 22/7. On 23/7 ileostomy closure surgery/Colonoscopy was done and discharged on 3/8/1999. 5. It was the contention of the complainant that the hysterectomy operation itself was not a required as the complainant was only having menstrual irregularities and in the hystopathological report of the specimen that consisted uterus with cervics only mild, chronic cervicitis and benign endometrial polyp are noted. The same would have been totally cured by doing a simple D and C (Dilatation and Currettage). On the other hand opposite parties have produced Ext.B1, the ultra sound scan report dated 9/4/99 wherein it is mentioned as retroverted uterus with posterior cervical fibroid. Ext.B1 was produced subsequent to the examination of DW1/Gynaecologist. Hence it was contended that Ext.B1 is a fabricated document. All the same the Forum has rejected the above contention as the fact that the complainant underwent USS is admitted in the complaint as well as in the lawyer notice. It was also noted that the Gynaecologist ceased to work in the opposite party hospital and hence she might not have been in a position to see that the above document is incorporated in Ext.P1 case sheet. It was also held that in the absence of expert evidence it cannot be concluded that a removal of the uterus was not required. It was also noted that there was no pleadings in the complaint that the removal of the uterus was unwarranted. 6. The Forum has observed that the selection of the particular line of treatment is left to the treating doctor and hence it cannot be held that the hysterectomy done amounted to deficiency. We find that surgery if not required is suggested and got done cannot be said to be proper. The same amounts to unprofessional conduct and in turn deficiency in such circumstances the complainant would be entitled for compensation. 7. In the instant case the complainant had only menstrual irregularities and no bleeding etc. The histopathology report of the specimen mentions only mild chronic cervicitis and benign endometrial polyp vide the report incorporated in Ext.P1 case sheet of the 1st opposite party hospital. Microscopy examination also showed only features of mild, chronic inflammation and benign endometrial polyp. There is no fibroid in Ext. B1 USS report. Of course it is mentioned as posterior cervical fibroid. The uterus is mentioned as normal size although DW1 has stated that it was bulky. The complainant has quoted from the medical literature produced ie Operative Gynaecology, 6th Edn, by Richard F.Mattingly and John D Thomson at page 208 and 500 that in such circumstances only curettage is required. It is in the above context that the genuineness of Ext.B1 has been disputed. All the same the Forum has found that the non production of Ext.B1 was on account of different reasons. We are not interfering in the above observations on the part of the Forum. We cannot but observe that in the circumstances and in view of the fact that complainant was aged 42 years and without complaints of bleeding the hysterectomy done appears to be some what hasty. 8. It is the contention of the appellants that the perforation in the ileum was on account of adhesions which the complainant was having on account of the previous surgery for appendicitis done 8/12 years back. It is mentioned in Ext.X1 case sheet of the West Fort Hospital that appendicectomy was conducted 12 years back although it is mentioned as having done 8 years back in the argument notes of the appellants. It was the contention in the version that it was perforation on account of drug induced gastritis. The above was the diagnosis of the Gastroenterologist. The perforation could not be diagnosed during the time the complainant was hospitalized up to 27/5/99 after hysterectomy done on 20/5/99. The next 2 days of surgery is mentioned as uneventful in Ext.P1 case sheet. It was on 23/5/99 ie 3rd day of surgery that it was noted that the patient had vomiting and epigastric pain. On 24/5 also vomiting and epigastric pain is noted. Abdomen is mentioned as soft-mild distention +. The Gastroentrologist who examined the patient on the particular day has noted diffuse abdominal discomfort and tenderness in left lumbar, epigastric region. It is also mentioned as having shifting dullness + which is an indication of liquid in the peritoneal cavity. The Gastroenterologist/OP3 has directed to withhold of NSAIDS (non steroid anti inflammatory drugs). On ultra sound scan no collection has been detected. Hence OP3 has diagnosed the condition as drug induced gastritis. On 25/5 and 26/5 the condition is mentioned as fair and injections was stopped and tablets started. On 27/5 also it mentioned that the condition of the patient is fine and discharged. The Forum has quoted verbatim the notings in the case sheet from 20/5 onwards. Soon after discharge at 10 pm the complainant was admitted as she had vomiting. The general condition is mentioned as poor and the abdomen slightly distended and bowl sounds mentioned as sluggish. Sudden onset of pain in the abdomen since noon is also mentioned. The same would indicate that immediately after discharge she was having abdominal pain. The diagnosis is duodenal perforation. Preparations for laparotomy were noted and in the early morning at 4.45 am on 28/5 laparotomy was done. The surgeon has noted as post operative peritonitis. Ileostomy was done. It is noted that on opening of the peritoneum, disruption of the terminal ileum and good fluid faecal contamination of the peritoneal cavity is noted. Faecal matter was removed and toilet done. Terminal ileum brought out as a left ileostomy and ceacal end closed. The condition in the peritoneum indicated that the perforation of the ileum was not an instant one. The Forum has noted as admitted by DW1/Gynaecologist who alone was examined at the instance of the opposite parties that the duration/age of the rupture has not been noted and the same ought to have been noted. It was the fact of discharge and readmission on the same day that render suspicious the observations noted in Ext.P1 case sheet as to the condition of the patient was fine at the time of discharge. Evidently, immediately after discharge the patient developed abdominal pain. The contentions stressed by the appellant is that the rupture of the intestine was on account of adhesions present in the intestine on account of the previous surgery and also on account of the particular body constitution of the complainant. Reliance is placed on the histo pathology report in Ext.X1 case sheet of West Fort Hospital on the subsequent surgery done on 25/4/2001 ie about 2 years subsequent to the instant admission. The above surgery was for removal of gall bladder stones (Cholecystectomy). The histopathological report of the above specimen mentions that the entire wall of gall bladder showed congested blood vessels, hemorrhage and inflammatory cell infiltration by lymphocytes, plasma cells. The appellants have also relied on the histo pathological report of the ileostomy specimen when bowl anesthomosis was done at the Westfort Hospital. In the microscopic examination it is mentioned that wall of intestine showed fibrosis and diffuse infiltration of lymphocytes and plasma cells. It is also mentioned that the intestine is adherent to skin. The counsel has placed reliance on a text book of Abdominal Operations, Volume 2, 6th Edn, by Rodney Maingot wherein adhesions, band information etc are mentioned as extrinsic causes for perforation. Late post operative or post inflammatory adhesions which are fibrous in nature will have a past history of abdominal operation or inflammatory lesion. In weakening of the mucosal defenses by ischaemia will permit invasion of the wall of the bowl which can result in adverse full thickness necrosis and rupture. In the discharge summery of West Fort Hospital with respect to Gall Bladder Stone Operation done on 25-04-2001, it is mentioned that the Gall Bladder was thick walled and contained stones and that the procedure was started as laparoscopy. Since there was intra abdominal adhesions open cholecystectomy was done. 9. In the discharge summery of West Fort Hospital the diagnosis is mentioned as peritonitis secondary to ileal disruption. It is mentioned that the patient had wound infection and intra abdominal infection and was managed conservatively and by laparostomy. She was admitted on 03-06-1999 and discharged on 27-06-1999 as she gradually improved and the wound was healing. She was admitted on 22-07-99 for closure of ileostomy/colonoscopy performed was normal. Laparotomy excision of ileostomy ileo ileal anastomosis was performed on 24-07-1999. She was discharged on 03-08-1999. It is noted that there was chronic inflammation of ileotomy region with foreign body granulo matous reaction 10. The Forum has noted that the act of opposite parties/appellants etc. in administering treatment for gastric ulcer during post operative period amounted to deficiency, as actual problem was intestinal perforation. The Forum has found fault with the opposite parties/doctors in overstepping clinic symptoms of intestinal perforation and solely relied on the US Scan report which indicated no collection of liquid in the peritoneal cavity. It was on readmission on the date of discharge itself that the patient was subjected to X-ray and found air under diaphragm, which is indicative of rupture of the intestine. We find that mistaken diagnosis as such cannot be treated as deficiency. Of course, there are discrepancies in the observations noted in the case sheet especially with respect to passing of stool. It is likely that the Gastroenterologist and the Gynaecologist did not suspect at all the ileum perforation. Hence we disagree with the finding of the Forum in this regard. The allegation that the patient was discharged deliberately to make it appear that she was readmitted for a different illness do not appear to be correct in the circumstances. It is also to be noted that patients taking potent anti inflammatory drugs like NSAIDS will have a less dramatic presentation (Bailey and Love’s Short Practice of Surgery 24th Edition at Page 1045). 11. All the same, we find that the contention of the appellants that the site of ileum is far away from the site of hysterectomy and hence there is no likelihood of ileum perforation cannot be said to be exactly correct. Small intestine is a some what mobile structure. The presence of adhesions ought to have been taken note of by the Gynaecologist as she would have been aware of the appendicitis surgery performed earlier. It is possible that displacing etc. of the small intestine at the time of surgery also would have resulted in the perforation. The contention that the administration of anti inflammatory drugs would have manifested the perforation do not appear to be correct as in such a short period it is unlikely that the resultant inflammation would have resulted in perforation. Gynaecologist performing the procedure of hysterectomy is a specialist and is expected to avoid such complications. Such an error could not have been made by a reasonable competent professional acting with ordinary care as noted by the Forum vide Saroj Chandodke Vs Ganga Ram Hospital, (2007) III CPJ 189 (NC). It is also pertinent to note that the complainant was not having any history of duodenal ulcer. The serious nature of the condition of the complainant post ileotomy at the first opposite party hospital and as evident from Ext.X1 the case sheet of West Fort Hospital would indicate that the ileum perforation was not of instant origin of 27-05-1999. In the circumstances, we uphold the finding of the Forum that there is negligence on the part of the second opposite party Gynaecologist in the hysterectomy done. 12. It was also contented by the Counsel for the appellants that as there is no expert evidence adduced to prove negligence the order of the Forum has to be set aside. We find that the above is no reason to discard the evidence supported by literature on the point. The National Commission in P. Ventakta Lakshmi Vs Dr. Y. Savitha Devi, II (2004) CPJ 14(NC) has noted that the situation has to be considered in view of the ground reality that very rarely, if ever any other doctor comes forward to give evidence in person or by way of evidence against another doctor. 13. The compensation awarded cannot be said to be excessive especially in view of the fact that the medical expenses as per the bills produced itself would work out to Rs. 1,35,000/-. The complainant has undergone considerable sufferings as she has undergone multiple surgeries and was an inpatient for about 50 days in two hospitals. With respect to the contention of the appellant/complainant in Appeal No. 196/09 for enhanced compensation, we find that there is hardly any material to substantiate the same. We agree with the finding of the Forum that there is no evidence to establish that it is on account of the disabilities consequent to the surgeries that she had to resign from employment. All the same, no interest has been awarded. The complainant is entitled for interest, but the opposite party cannot be held liable for the inordinate delay in the disposal of the matter which was on account of the non-functioning of the Forum for a considerable period also. In the circumstances, we award interest at the rate of 7.5% for a period of 2 years, which we take as a reasonable period for the disposal of the complaint as well as the appeal. Hence the complainant is awarded a sum of Rs. 1,55,000/- as compensation with interest at 7.5% for two years and Rs. 2,500/- towards costs. The amounts are to be paid within 3 months from the date of receipt of this order failing which the appellants/opposite parties 1 and 2 would be liable to pay further interest at 7.5% on the principal amount from the date of this order. Hence Appeal No. 194/2009 is dismissed and Appeal No. 196/09 is allowed in part as above. The office will forward the LCR to the Forum along with copy of this order urgently. JUSTICE K.R. UDAYABHANU: PRESIDENT | 
