SMT. RAVI SUSHA: PRESIDENT

Complainant filed this complaint U/s 12 of Consumer Protection Act 1986, against opposite parties 1 to 5, alleging deficiency in service and medical negligence on the part of opposite party No.2 Dr.Ajith S and opposite party No.4 Dr. Vidya Prabhu.

            The facts of the case is that, when the complainant developed abdominal pain she went to the Dhanaklakshmi hospital and from there Dr. Jubairaiath detected that the complainant was having mass fibroids and immediate hysterectomy was advised to her.  Accordingly she approached the 1^st OP hospital and from there Dr. Ajith the 2^nd  OP advised her to under an early hysterectomy.  On 06/12/2011 the complainant got admitted in the 1^st OP hospital and Dr. Ajith has conducted the surgical procedure and she was discharged on 10/12/2011.  But on 12/12/2011 she developed abdominal pain and had complaint of vomiting and approached the 2^nd OP’s at his residence.  The 2^nd OP asked the complainant to go to the 1^st OP hospital and hence the complainant visited the hospital on 14/12/2011, where the 2^nd OP has conducted radiological examination and has found that the kidney of the complainant was infected.  Following which on 15^th and16^th after further investigations it was detected that the urethra leading to the left kidney was blocked due to the stricture caused due to infection.  Therefore further surgical procedure was advised to be done after 6 weeks and the complainant was discharged on 19/12/2011.  The complainant alleged that there was  latches on the part of the 2^nd OP in conducting the procedure and lapse in the treatment has occurred.  Therefore the complainant approached the MIMS hospital, Kozhikode.  From there another operation was conducted in order to bypass the urine from the kidney. It was at the MIMS hospital the complainant realized that the 2^nd OP while conducting the operation has sutured her urethra and the kidney to gather and that was the reason why infection has developed.  According to her she had to incur huge expenses towards treatment only because of the negligence on the part of the 2^nd OP.  Hence she claims compensation of Rs.11,00,000/- from the 2^nd and the 4^th  OP.

            OPs 1 to 4 filed separate versions.  OP No.1 Chairman, Pariyaram Medical College Hospital pleaded that the chairman is not the competent person to represent the Medical college in litigation and the day to day affairs of the Medical college hospital is governed by the duly appointed Managing Director of the Kerala State co-operative Hospital Complex and Centre for Advanced Medical services Ltd.  No.4386, Pariyaram and the subordinate officers.  As such the Managing Director is the apt person to represent the Medical College Hospital and without impleading the Mangaing Director as the OP, the complaint is not legally sustainable.  The chairman is an unnecessary party in the proceedings.  Further stated that from the available information, this OP can very well submit that there was no negligence or defective service in the treatment of the complainant by the OP No.2.  As such the entire allegations in the complaint against the OPs are false and hence denied.  Further the surgery of the complainant was done by the senior Gynecologist of this OP Hospital with all care.  The complainant had a previous caesarean section which alters the anatomy and she had a chance of developing the complication which was clearly explained to the complainant while taking her consent for surgery.  The timely intervention of the Medical College and the second OP prevented the loss of renal function and more complications.  It is submitted that there was no willful latches or negligence from the part of the OPs.  Hence prayed for the dismissal of complaint.

            Contentions in the version of OPs 2 and 4 are more or less the same.  In their version it is stated that the complaint is not maintainable either in law or on facts.  There is no negligence or deficiency in service as alleged by the complainant.  The complainant is not entitled to get any relief as prayed for in the complaint.  OP’s contended that the complainant came to the outpatient department in the 1^st OP hospital on 08/11/2011 with complaints of mass abdomen and associated occasional abdominal pain.  She has a history of one normal delivery and acaesarean section.  As per vaginal examination, her uterus was found enlarged to 14-16 weeks size with suspected multiple fibroids.  Her Ultra Sonogram (USG) examination also revealed multiple fibroids and she was advised routine blood investigation.  On the basis of clinical as well as investigation findings, the complainant was advised total abdominal hysterectomy.  The complainant got admitted to the 1^st OP hospital on 06/12/2011 for surgery.  The complainant underwent all necessary pre-operative evaluation and anesthetic check up and found fit for surgery posted to 07/12/2011.  Pre-operatively the Second OP had informed the complainant and her relatives about the pros and cons of total abdominal hysterectomy including the risk factors like chances of injury to bladder, ureters and intestine involved in the surgery.  After fully aware of the surgical procedure and the risk factors, the complainant and her husband voluntarily agreed to surgery and gave specific written informed consent.  Since the 2^nd OP had to attend an emergency case in the operation theater during the time, another senior most Assistant Professor of the unit namely Dr. Vidya Prabhu had conducted total abdominal hysterectomy operation of the complainant with all aseptic care and precautions under epidural anaesthesia. Intra operatively uterus was found 16 weeks size and bladder was found adhered to the uterus probably due to previous pelvic surgery.  With utmost care and caution bladder was pulled up and released the adhesions and separated and removed the uterus.  Post operatively the complainant was kept under close monitoring and the vital parameters were checked and she had been kept under proper antibiotic cover.  The post operative period was uneventful and the patient was discharged on 10/12/2011 with an advice for review.  On 12/12/2011 the complainant came to the residence of the 2^nd OP with complaints of mild abdominal pain and vomiting and on examination she did not manifest symptoms to suspect any surgical problem and hence she was advised symptomatic treatment and asked to report in the hospital in case of persistence of symptoms.  The complainant reported to the Hospital on 14/12/2011 with complaints of abdominal pain and vomiting and she was admitted in the hospital.  On examination her pulse and BP were normal and abdomen was soft, tenderness present in spino umbilical line with bowel sounds present.  Surgical scar was healthy and there was no tenderness or discharge.  The Ultra Sound Scanning examination revealed left hydronephrosis.  In view of USG findings, the  complainant was referred to the Urologist.  The Urologist had seen the complainant and on the basis of clinical findings advised to undergo CECT KUB suspecting ureteric injury.  The CT report revealed left hydroureteric nephrosis with possibility of injury to lower ureter.  The urologist and the 2^nd OP had made a detailed discussion with the complainant and her relatives and informed them about the investigation findings including possible left ureteric injury and advised ureteroscopy and percutaneous nephrostomy.  They were also informed about the need for permanent procedure for correcting ureteric injury through ureteric dilatation or through open ureteric re-implantation.  The Pros and cons of the surgical procedures were discussed and percutaneous nephrostomy was as prescribed as an emergency temporary procedure.  The complainant and her relatives voluntarily agreed and consented for uereteroscopy and nephrostomy.  On 16/12/2011 the urologist  conducted ureteroscopy and left ureteric orifice identified and found to be normal.  But due to narrowing in the lower ureter the scope could not be negotiated through the left ureter and hence percutaneous nephrostomy tube was inserted with utmost care and caution. The position of the tube was confirmed under C-arm guidance with dye.  Intra operative and post operative periods were uneventful and post operative renal function test was within normal limits and the complainant was discharged on 19/12/2011 with necessary instructions for nephrostomy tube care.  The complainant was advised review after 2 weeks.  Bu she did not turn up and lost further follow up.  The hysterectomy operation was conducted by a senior most Gynecologist well experienced in abdominal hysterectomy.  It is clear from the intra operative findings during hysterectomy that the internal anatomy was distorted because of previous abdominal surgery and the uterus an bladder were adhered together.  The chance of causing ureteric injury during abdominal hysterectomy is very high in cases where uterus is adhered to nearby structures due to previous surgery such as caesarean section.  This complication is reported in 0.5 to 1% of abdominal hysterectomies and only one third of such injuries are diagnosed  intra-operatively as the tug created while releasing adhesions may lead to gradual inflammatory process in the ureter developed into gradual fibrotic process manifested in the post operative period as hydro-ureteric nephrosis.  In the complainant’s case she developed vomiting which is not a common symptom to suspect ureteric injury.  But on the basis of high index of suspicion, hydro-ureteronephrosis could be timely diagnosed and treated before losing the renal function.  There was no negligence or deficiency in service on the part of the second party and 4^th OP at any point of time in the treatment of the complainant.  In the light of the above mentioned facts the 2^nd OP and 4^th OP are not liable to compensate the complainant.  OPs denied all other allegations mentioned in the complaint.

            3^rd OP the managing director of OP hospital has filed separate version stating that there is no such post in the Pariyaram Medical College. The Pariyaram Medical College Hospital is an institution under the Kerala State Co-operative Hospital Complex and Centre for Advanced Medical Services Ltd. No.4386, Pariyaram and being the principal officer of the Society, the Managing Director received the notice.  It is true that the complainant was admitted in the Pariyaram Medical College Hospital on 6/12/2011 for surgery and the surgery was conducted on 07/12/2011 after all necessary pre-operative evaluation and anesthetic checkup.  It is learned that before conducting the surgery the doctors informed the complainant and her relatives about the pros and cons of total abdominal hysterectomy including the risk factors like chances of injury to bladder, ureters and intestine involved in the surgery.  Fate fully aware of the surgical procedure and the risk factors, the complainant and her husband voluntarily agreed for surgery after giving specific written consent.  The surgery was conducted by the competent and well experience doctors with all aseptic care and precautions under epidural anesthesia.  The surgery was den with due diligence and care by the senior most doctor of the concerned department and there was no negligence or deficiency in service on the part of the doctor in the treatment of the complainant.  After the surgery the complainant was kept under close monitoring and the vital parameters were checked and she had been kept under proper antibiotic cover.  She was discharged on 10/12/2011.   After the discharge, the complainant again reached at Hospital on 14/12/2011 with complaints of abdominal pain and vomiting and she was admitted in the Hospital.  Thereafter, the complainant was provided with the service of the expert specialists of the Hospital.  She was discharged from the Hospital on 19/12/2011 with necessary instructions for nephrostomy tube care and she was advised review after two weeks.  But she has not turned up for further follow up.  There was no negligence or deficiency in service on the part of the doctor at any point of time in the treatment of the complainant.  In the light of the above mentioned facts the OPs are not liable to compensate the complainant and prayed for the dismissal of complaint.

            5^th additional OP remained absent after receiving notice.  Hence OP No.5 was declared as ex-parte.

            Complainant filed affidavit of herself and marked Exts.A1 to A10.  Complainant was subjected to cross-examine for OPs 2 and 4.  The case sheet of MIMS hospital, Calicut was marked as Ext.X1.  Urologist Dr.Hari Govind, who treated the complainant at MIMS Hospital was examined as an expert doctor on the side of complainant (Pw2).  OP doctors 2 and 4 filed affidavit and was examined as Dw1 and Dw2.  Both defense witnesses were subjected to cross-examine for the complainant.

            After that both learned counsels of complainant and OPs 2 and 4 are argued the matter and the learned counsel of OPs filed written argument note with citations of case law.

            The learned counsel of OP submitted that the expert doctor cited from the side of complainant Dr. Hari govind, (PW2) who treated complainant after she had abandoned the treatment of OPs has clearly deposed that the procedure followed by the doctors OP No.2 and OP No.4 and the urologist at OP hospital was the appropriate one and that they have discharged their duty diligently OP submitted that patient came to the outpatient department in the 1^st OP hospital on 08/11/2011 with complaints of mass abdomen and associated occasional abdominal pain.  She has a history of one normal delivery and a caesarean section.  As per vaginal exam nation, her uterus was found enlarged to 14-16 weeks size with suspected multiple fibroids.  Her Ultra Sonogram (USG) examination also revealed multiple fibroids and she was advised routine blood investigation.  On the basis of clinical as well as investigation findings, the complainant was advised total abdominal hysterectomy.  The complainant got admitted to the 1^st OP hospital on 06/12/2011 for surgery.  The complainant underwent all necessary pre-operative evaluation and anesthetic check up and found fit for surgery posted to 07/12/2011.  After fully aware of the surgical procedure and the risk factors, the complainant and her husband voluntarily agreed to surgery and gave specific written informed consent.  Since OP2 had to attend an emergency case in the operation theatre during the time, another senior most Assistant professor of the unit namely Dr. Vidya Prabhu (OP4) has conducted total abdominal hysterectomy operation of the complainant with all aseptic care and precautions under epidural anesthesia.  Intra operatively uterus was found 16 weeks size and bladder was found adhered to the uterus probably due to previous pelvic surgery.  With utmost care and caution bladder was pulled up and released the adhesions and separated and removed the uterus.

            Further submitted that after the surgery till the discharge time, the patient was found stable and she did not develop complications.  Thereafter she came back on 12/12/2011 to OP No.2 with complaint of mild abdominal pain and vomiting.  It is submitted that on examination the surgical scar was healthy and there was not tenderness or discharge.  The Ultra Sound Scanning examination revealed left hydronephrosis.  In view of USG findings, the complainant was referred to the Urologist.  The Urologist had seen the complainant and on the basis of clinical findings advised to undergo CECT KUB suspecting ureteric injury. The CT report revealed left hydroureteric nephrosis with possibility of injury to lower ureter.  The urologist and OP2 had made a detailed discussion with the complainant and her relatives and informed them about the investigation findings including possible left ureteric injury and advised ureteroscopy and percutaneouse nephrostomy.  They were also informed about the need for permanent procedure for correcting ureteric injury through ureteric dilatation or through open ureteric re-implantation.  The pros and cons of the surgical procedures were discussed and percutaneous neprostomy was prescribed as an emergency temporary procedure.  The complainant and her relatives voluntarily agreed and consented for ureteroscopy and nephrostomey,.  On 16/12/ 2011 the Urologist conducted ureteroscopy and left ureteric orifice identified and found to be normal.  But due to narrowing in the lower ureter the scope could not be negotiated through the left ureter and hence percutanieous nephrostomy tube was inserted with utmst care and caution.  The position of the tube was confirmed under C-arm guidance with dye.  Intra operative and post operative periods were uneventful and post operative renal function test was within normal limits and the complainant was discharged on 19/12/2011 with necessary instructions for nephrostomy tube care.  The complainant was advised review after 2 weeks.  But she did not turn up and lost further follow up and she preferred to approach another doctor.

            The learned counsel of OP submitted that the post operative complication developed on the patient is one of the known post-operative complication of such surgery for which OP No.2 had adopted conservative line of treatment.  Therefore OPs 2 and 4 are not liable  in any sort of medical negligence due to the subsequent events stated by the complainant.

            Further submitted that the allegations of complainant left ureteric stricture developed on the patient due to medical negligence on the side of OPs 2 and 4 was not proved through expert opinion.  According to treating doctors there is no proof to show that first surgery performed by 4^th OP as per the direction of OP No.2 was in any way wrongful or it was not carried out with requisite medical skill required to be performed by a Gynecologist.  According to OPs 2 and 4 the further allegation of complainant that OP No.2 had referred the patient to OP No.4 having no experience for conducting such major surgery, without taking proper care is baseless.  Here OP No.2 has stated that since he had to attend an emergency case in the operation theater during the time, he had entrusted another senior most Assistant professor of the unit OP No.4 to conduct the surgery and she had conducted total abdominal hysterectomy operation on the patient with all aseptic care and precautions under anaesthesia.  According to OP No.2, the patent had not suggested that OP No.2 must conduct the surgery at any time and since OP hospital is a Medical college hospital,  a team of doctors examine patients and as suggested by the Head of department, one efficient doctor will do the surgery.  We are of the view that on this ground as alleged by complainant, no negligence can be attributed to the OP No.2 here in.  Here complainant admitted that OP No.2 was present in the operation theater at the time of surgery which means OP No.2 take care in conducting surgery by OP No.4 doctor.  Hence we cannot blame OP No.2 in entrusting the surgeries to OP No.4 as he had to attend an emergent case. Moreover OP No.4 is also gynecologist having qualification of M B BS, DGHO AND DNB and working as Assistant professor, at OP hospital with experience of 4 ½ years at that time. 

            The learned counsel  of complainant submitted that on 14/12/2011 when she was examined radiologically by OP No.2 after the surgery, it was found that the kidney of the complainant was infected and on further investigations it was detected that urethra leading to the left kidney was blocked due to the stricture caused due to infection.  According to complainant, the said post-operative complication was developed due to latches on the part of the OP No.4 in conducting the procedure and lapse in the treatment.  Further alleged that OP No.4 while conducting the operation has sutured her urethra and the kidney together and that was the reason for developing infection.

            Here on perusal of case record of Aster MIMS hospital from where complainant had been done corrective surgery, shows that History and physical examination findings.  The patient had Hysterectomy on 07/12/2011 from Pariyaram.  Then she had abdominal pain and was diagnosed to have left dilated system URS+DJ stenting was attempted but in vain so left, PCN was done.  Now she is admitted with Left PCN insitu for definitive Management of left uteric stricture.  The final Diagnosis as per X1 case record was left ureteric stricture.

            Next on analyzing the evidence adduced by the treating doctor of the complainant at higher centre  Dr.Hari Govind, chief consultant, Urologist, Department of Advanced Urology, MIMS Hospital, Calicut examined as Pw2, revealed that during treatment on the patient, he never felt that anything unusual about the treatment given by OPs 2 and 4.  In page 2 last of deposition of Pw2, “Hysterectomy ചെയ്തതിനു ശേഷം ചുരുങ്ങിയ ദിവസങ്ങൾക്കുള്ളിൽ  തന്നെ രണ്ടാമത് സർജറി വേണ്ടിവന്നതുകൊണ്ടു ഒന്നാമത്തെ സർജറി success ആയില്ല  എന്ന് വേണം കരുതാൻ എന്ന് പറഞ്ഞാൽ? അങ്ങനെ പറയാൻ പറ്റില്ല.  രണ്ടാമത്തെ surgery യുടെ ആവശ്യം  എന്തായിരുന്നു?   lowery ureteric trac stricture ഉള്ളതുകൊണ്ടായിരുന്നു.  ആ  complaint  എന്ന് തുടങ്ങി എന്ന് എനിക്ക് പറയാൻ പറ്റില്ല.  ആദ്യത്തെ operation ൻറെ complication കൊണ്ടുവരാം എന്ന് പറഞ്ഞാൽ? complication എന്ന് പറയാൻ പറ്റില്ല.  പരിയാരത്തുള്ള  ഡോക്ടർമാർ ചെയ്ത treatment  ൻറെ  careless  കൊണ്ടാണ് ഇങ്ങനെ സംഭവിച്ചതെന്ന് പറഞ്ഞാൽ? എനിക്ക് പറയാൻ പറ്റിയില്ല.  treat ചെയ്ത ഡോക്ടർമാർക്കെ പറയാൻ പറ്റുകയുള്ളൂ.

            Hence from the evidence Pw2 as an expert doctor in the same field gave expert opinion that the procedure followed by the OPs 2 ad 4 at OP hospital was the appropriate treatment and 2^nd surgery was necessitated not because of the failure of 1^st surgery.

            Here the learned counsel for the OP submitted number of citenations of Hon’ble apex court and National commission and submitted that Medical negligence has to be established against the Medical practitioner  and cannot be presumed in any case of alleged medical negligence.  Further the doctor would be liable only where his conduct fell below the standard of a reasonably competent practitioner in his field. Here OP No.2 is a gynecologist having qualification of MD, DGO, DNB, MRCOG (UK) and working as professor of obstetrics and gynecology at ACME, Pariyarm having experience of 17 years in the relevant field at the incident time as alleged in the instant case.  OP No.4 is also a gynecologist having qualification of MBBS, DGO and DNB and was working as Assistant professor in OP hospital having 4 ½ years experience at that time.

            On perusal of Ext.X1 the doctor at MIMS Hospital reported in history URS+DJ stenting was attempted at OP hospital but in vain so left PCN was done.  Further we can realize that when the patient came with post operative complication to OP No.2 he had conducted clinical and procedure investigations like USG etc and find out proper diagnosis as post operative Hydrouretero  hephrosis and referred the patient immediately to urologist for further proper treatment.  From the affidavits of OPs2 and 4 and from their evidence, and also from the evidence of Pw2 expert doctor, there is no evidence of Medical negligence adduced on the side of OPs especially on Ops 2 and 4, so we cannot come to a conclusion that there is medical negligence occurred from the side of Ops in treating and conducting surgery on the complainant at the OP hospital.

            Further in Ext.X1 case record, after corrective surgery on the complainant ie underwent left urecteric reimplanatation +DJ stending on 30/12/2011, no further complication happened on her.  OPs claimed that if the patient approached to them at the review time, the corrective surgery as done at MIM hospital would have been done at OP hospital also, but the patient did not turn up and she preferred to approach another hospital.  Further from the evidence of Pw2, it is evident that the second operation done on the patient does not mean that the first operation was a failure one.  From the expert evidence available here, there was no substance in the allegations made by the complainant against OPs herein.  We are of the view that OPs had done their duty by taking due and proper precautions of pre-surgical evaluations.  There is no evidence that the second surgery was done for the rectification of mistakes committed as alleged by the complainant.  Here there is no dispute that the complainant had a history of one normal delivery and caesarean section and the uterus was found enlarged to 14-16 weeks size with multiple fibroids.  OP No.4 OP No.4 has stated that Intra operatively uterus was found 16 weeks size and bladder was found adhered to the uterus probably due to previous pelvic surgery and she had conducted surgery with utmost care and caution bladder was pulled up and released the adhesions and separated and removed the uterus.  Further post operatively the complainant was kept under close monitoring and the vital parameters were checked and she had been kept under proper antibiotic cover.

            Here no fault could be found in adopting the line of treatment in conducting 1^st operation on the complainant.  In fact, had the complainant approached the OP hospital, the remedial steps would have been taken.

            From the aforesaid facts and circumstance, Medical negligence cannot be attributed against OPs.  Complainant failed to establish negligence on the part of neither of OPs.

            In the result complaint fails and hence it is dismissed.  No order as to cost.

Exts

A1        - Prescription of Dhanalakshmi Hospital dated 27/10/2011

A2        - Scanning report dated 27/10/2011

A3        - Prescription of OP2 dated 07/11/2011

A4        - Scanning report of OP1 dated 15/11/2011

A5        - Discharge card dated 06/12/2011

A6        - Prescription dated 12/12/2011

A7        - Discharge card dated 14/12/2011

A8        - Scanning report of OP1 dated 15/12/2011

A9        - Scanning report of OP1 dated 16/12/2011

A10      - Discharge card  of MIMS  hospital

C1        - Commission report (subject to proof)

Pw1     - Complainant

Sd/                                                                          Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar