BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 500/2002 Filed on 26.11.2002

Dated : 31.10.2011

Complainant :

Preetha Rajan, T.C 19/1773, Dr. Pai Road, Poojappura P.O, Thiruvananthapuram.

(By adv. C.S. Raj Mohan)

Opposite parties :

1. Chief Medical Officer, Managing Director, G.G. Hospital, Murinjapalam, Thiruvananthapuram.

    

2. Dr. Radhakumary, Senior Consultant, Gynecology, G.G. Hospital, Thiruvananthapuram.

(By adv. B. Sakthidharan Nair)

Addl. Opposite party :

3. The Divisional Manager, New India Assurance co. Ltd., 2^nd Floor, Rema Plaza, S.S. Kovil Road, Thampanoor.

(By adv. M. Nizamudeen)

This O.P having been taken as heard on 31.08.2011, the Forum on 31.10.2011 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant was a candidate for military nursing service, that she was selected for B.Sc Nursing, that as part of her selection proceedings she had undergone medical check up by the Medical Board, that while she was examined by the Medical Board, it was diagnosed that a cyst was formed on the right ovary of the complainant, that she was advised to undergo urgent surgery to remove the same and directed to join after that, that as per the advice of the Medical Board complainant was admitted to 1^st opposite party's hospital as IP No. 031138 that she had undergone a key-hole surgery for removal of the cyst in the right ovary on 02.05.2002, that she was discharged on 05.05.2002, that after discharge the complainant was suffering from abdominal pain, she made complaints about it to the doctors, who did not care about the petitioner, that they told that complainant is all right and the pain will exist for one or two days, that thereafter complainant went to Bangalore for joining the nursing course, that when she reached Bangalore her pain increased and she was taken to Aswini Nursing Home, Kammanahally Circle, Bangalore, that there the doctors found that there was intra-abdominal bleeding and they opined that it was due to the surgery she had undergone in the opposite party's hospital, that the complainant undergone another urgent surgery and removed the ovarial tube and ovary in order to stop bleeding. That because of all these the complainant could not join for the course to which she was selected and the job opportunity of her was lost, that after discharge from the said hospital, she came to Thiruvananthapuram and continued her treatment at Chelsa Hospital, Karamana, and that all sufferings of the petitioner was due to negligent service of the opposite party's hospital. Hence this complaint to direct opposite party to pay an amount of Rs. 5,00,000/- with interest as compensation along with costs.

Opposite parties 1 & 2 filed version contending interalia that it was at the choice of the complainant that she consulted the specialist and took treatment. Complainant choose the service of the doctor Radhakumari, 2^nd opposite party, that Dr. Radhakumari is not an employee of the opposite party hospital, that she utilized the facility of the opposite party hospital for treatment of her patients, that the 2^nd opposite party is consulting and treating patients elsewhere also, that complainant had paid professional charges to Dr. Radhakumari and paid only the charges for the facilities utilised to the 1^st opposite party, that the contention that the complainant was admitted in the hospital as per the advice of the Medical Board is incorrect, that complainant came on her own and consulted the 2^nd opposite party in the outpatient department of the 1^st opposite party, that on ultra sound examination, confirmed the presence of an ovarian cyst of the right ovary 8 cms in diameter with multiple septae, that the only treatment for this condition is surgical operation, if it is not done in time the cyst may undergo rupture or torsion resulting in serious complication, that the facts were explained to the complainant and she opted for laparoscopic surgery (key-hole surgery). The complainant was operated on 02.05.2002, that on laparoscopy her right ovary contained a multiloculated cyst. As the complainant was an unmarried woman the cyst was removed and preserved the rest of the ovary. The left ovary also contained cyst which was aspirated, that the operation was done with care and attention, the post operative period was uneventful except for a mild fever on the second day. The complainant was discharged completely cured on 05.05.2002 with advice to report on 08.05.2002 for the removal of stitches. On 08.05.2002 complainant came and stitches were removed and the surgical incision had healed completely. Complainant had not made any complaint at that time, that complainant had obtained medical fitness certificate dated 08.05.2002 from Dr. Radhakumari. The allegation that the doctors of Aswani Nursing Home found intra abdominal bleeding and they opined that it was due to the surgery she had undergone in the opposite party's hospital is false and mischievous, that it is not possible to continue bleeding from ovary from 2^nd to 16^th May without producing acute symptoms, that in the case of complainant laparoscopic ovarian cystectomy was done to remove the right side ovarian cyst, bleeding from ovarian surgery is a possible complication, but such complication will occur immediately or within few hours of the surgery. Complainant had no such problem following such surgery. The averments in the complaint and the documents produced are vague and not suggestive of the fact that which ovary showed haemorrhage, the reason for haemorrhage and which ovary was removed. Complainant has suppressed the hysto pathological results. 2^nd opposite party is unaware of the alleged expenses spent by the complainant, that there is no act of omission or commission and there is no negligence and no deficiency of service on the part of the opposite parties 1 & 2, that 2^nd opposite party while diagnosing, conducting surgery and treating the complainant had acted with best of her skill, ability, care and attention, that complainant has not sustained any loss due to the act of the 2^nd opposite party. Hence opposite party prayed for dismissal of the complaint.

Additional 3^rd opposite party, New India Assurance Company also filed version stating that the complaint is not maintainable either in law or on facts. That 2^nd opposite party had taken a Doctor's Indemnity Insurance Policy from the 3^rd opposite party as policy No. 4676140004533 valid from 12.11.2001 to 11.11.2002. 3^rd opposite party took all defences for and on behalf of 2^nd opposite party. More or less the version filed by the 2^nd opposite party is accepted by the 3^rd opposite party. 3^rd opposite party also prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether there is negligence and deficiency in service on the part of the opposite parties 1 & 2 in giving treatment to the complainant?

2. Whether the complainant is entitled to compensation? If so at what quantum?

3. Whether the complainant is entitled to get costs?

In support of the complaint, complainant has filed affidavit and has marked Exts. P1 to P8. From the side of the complainant one witness has been examined as PW3. In rebuttal 1^st opposite party has filed affidavit and has marked Ext. D1. The 2^nd opposite party has also filed affidavit. 2^nd opposite party has been examined as DW1.

Points (i) to (iii):- There is no point in dispute that complainant was admitted in the 1^st opposite party's hospital with an ovarian cyst about 8 cm in diameter and surgery was done on 02.05.2002 and complainant was discharged on 05.05.2002. It has been the case of the complainant that at the time of discharge of the complainant she was suffering from abdominal pain, she made complaints about it to the doctors but the doctors of the opposite party's hospital did not care about the petitioner. They told her that the pain will exist for one or two days. It has also been the case of the complainant that believing the words of the doctors of the opposite eparty's hopsital she went to Bangalore for joining the nursing course. When the reached Bangalore her pain increased and she was taken to Aswani Nursing Home, Kammanahally Circle, Bangalore. There the doctors found that there was intra abdominal bleeding and they opined that it was due to surgery she had undergone in the opposite party's hospital, that she was admitted in Aswani hospital on 16.05.2002 and she had undergone another urgent surgery and removed ovarial tube and ovary in order to stop the bleeding. It has also been contended by the complainant that the doctors at Aswani Nursing Home opined that because of the non-attendance in proper time in opposite party's hospital the bleeding area became infected and she was in a very critical stage. Complainant's evidence consisted of oral testimony of PW1 and PW2 and Ext. P1 to P8. Ext. P1 is the copy of the instruction to candidates found unfit/temporarily unfit by special medical board. As per Ext. P1 it is seen that complainant is found unfit due to ovarian cyst. Ext. P2 is the copy of the fitness certificate dated 08.05.2002 issued by Dr. K. Radhakumari to Preetha Rajan stating that complainant is fit to rejoin duty on 15.05.2002. Ext. P3 is the certificate issued by 2^nd opposite party stating that Preetha Rajan came to 1^st opposite party hospital with an ultra sound report of a right sided ovarian cyst, that ultra sound scanning was repeated there and revealed a multiloculated ovarian cyst of 8 cm with septatians. No ascitis liver and paraaortic area normal and she was posted for a laparoscopic ovarian cystectomy, that laparoscopy revealed an ovarian cyst 10x10 cm multiloculated, that the large locula contained Sebacious material + hair. Cyst enucloated. Left ovary polycystic-aspirated and biopsy taken from the cyst wall. No evidence of secondaries in the Pelvis or Abdomen. Ext. P4 is the copy of the reference card of G.G. Hospital. Ext. P5 is the copy of the discharge summary from Aswini Nursing Home, Kammanahalli Circle, Bangalore. As per Ext. P5 complainant was admitted at Aswini Nursing Home on 16.05.2002. In the clinical history, it is seen stated acute abdomen tenderness and scan shows intra abdominal bleeding. Diagnosis : Intra abdominal bleeding. In the treatment column it is stated Laparotomy tube and ovary removed to stop bleeding. Skin closed and advised rest for 2 weeks. Nowhere in Ext. P5 is it seen mentioned the treatment given at Aswini Nursing Home is in continuation with the treatment given at opposite party's hospital. Ext. P6 is the certificate issued by Dr. V.C. Velayudhan Pillai, Chelsa Hospital, Karamana to Preetha Rajan stating that she has been under his treatment for post operative wound infection from 23.05.2002. Ext. P7 is the copy of the advocate notice. Ext. P8 series are the bills issued by Chelsa Hospital. Complainant has been cross examined as PW1 by opposite parties. From the side of the complainant Dr. Velayudhan Pillai has been examined as PW2. In his chief examination PW2 has admitted Ext. P6 dated 30.05.2002. PW2 has deposed that Miss. Preetha Rajan was under his treatment for post operative wound infection. PW2 has also admitted in chief examination Ext. P8 series bills. PW2 has been cross examined by opposite parties 1 & 2. In his cross examination PW2 has deposed that he has verified the documents of Aswini Hospital. PW2 has further deposed that he has examined the wound. Normally treatment summary will be issued to the patient and documents in connection with treatment may be there in the hospital. PW2 has deposed further that he cannot say about the nature of treatment done in his hospital without seeing the records. On being asked as to whether the wound was in relation to laparotomy, PW2 said that from the produced documents he could not say it. 2^nd opposite party also cross examined PW2. In his cross examination PW2 said he cannot say about the exact condition of the wound without seeing the medical records. When asked “Is it correct to say that different tissues react to surgery in different ways” he said 'Yes'. When asked on the point that post operative infection cannot be predicted or prevented he said some times it can be done. He further said if the patient had diabetics and lives in unhealthy surroundings then there is a chance for wound infection. On going through the evidence of the complainant and Ext. P5 & P6 there is no material on record to show that the second surgery done at Aswini Nursing Home and subsequent treatment at Chelsa Hospital is having any link with the treatment done at opposite party's hospital. Opposite parties' evidence consisted of oral testimony of 2^nd opposite party and Ext. D1. Ext. D1 is the case record from G.G. Hospital. On perusal of Ext. D1 case record it is seen that consent for operation was given by the patient. Treated doctor has been examined as DW1. DW1 has never been cross examined by the complainant thereby the affidavit filed by the 2^nd opposite party, the treated doctor remains uncontroverted. The question for consideration herein is whether the opposite party was negligent in performing the operation of the complainant. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of the human affairs, would do or doing something, which a prudent or reasonable man would not do. A medical practitioner would be liable only whether his conduct fell below that of the standards of a reasonably competent practitioner in his field. It is to be noted that in the realm of diagnosis and treatment there is scope for continuing difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctors. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Negligence would comprise existence of a legal duty, breach of legal duty and damage caused by the breach. In a complaint for damages on account of negligence the onus lies on the patient to prove that the doctor was negligent and the said negligence resulted in the injury which is complained to be compensated. Basically, medical negligence means such negligence resulting from the failure on the part of the doctor to act in accordance with medical standards or vogue which are being practiced by an ordinary and reasonably competent man practicing the same art. Once a doctor accepts a patient this principle becomes applicable. It may be stated here that to establish negligence on the part of the opposite party, the claimant must show (a) what is the standard care; (b) on the facts of the case, that opposite party's conduct fell below that standard; (c) that the same had resulted to some injury to the patient. Expert opinion is the basis for determining medical negligence. Complainant did not produce expert evidence to prove any negligence or deficiency in service on the part of the opposite parties. Though complainant had adduced evidence of PW2 nowhere in his deposition or in Ext. P6is it seen revealed anything to attribute any negligence and deficiency in service on the part of the opposite party. In view of the above we find opposite party is not guilty of medical negligence as long as they perform their duties and exercising ordinary degree of professional skill and competence. Complainant failed to establish the complaint which deserves to be dismissed.

In the result, the complaint is dismissed. Parties are left to bear and suffer their respective costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31^st day of October 2011.

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G. SIVAPRASAD : PRESIDENT

Sd/-

BEENAKUMARI. A : MEMBER

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S.K. SREELA : MEMBER

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O.P. No. 500/2002

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Preetha Rajan

PW2 - Dr. Velayudhan Pillai

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of the instructions to candidates found unfit/temporarily

unfit by Special Medical Board.

P2 - Copy of fitness certificate dated 08.05.2002 issued by Dr. K.

Radhakumari to complainant.

P3 - Certificate issued by 2^nd opposite party.

P4 - Copy of the reference card of G.G. Hospital.

P5 - Copy of discharge summary from Aswini Nursing Home.

P6 - Certificate issued by Dr. V.C. Velayudhan Pillai.

P7 - Copy of advocate notice

P8 - Bills issued by Chelsa Hospital.

III OPPOSITE PARTY'S WITNESS :

DW1 - Dr. K. Radhakumari

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Case Record from G.G. Hospital.

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PRESIDENT

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