By Sri. K. Gheevarghese, President:<br /> <br /> <br /> The complaint filed under section 12 of the Consumer Protection Act.<br /> <br /> <br /> The gist of the complaint is as given below.<br /> <br /> The Complainant is a Laboratory Technician running a Clinical Laboratory named Sanju Clinical Laboratory in Karnataka State. The Complainant went to the 1st Opposite Party's Hospital on 28.03.2003 for consulting the 2nd Opposite Party related to some physical uneasiness. The 2nd Opposite Party advised the Complainant to undergo abdominal hysterectomy and was admitted at Fathima Matha Hospital run by the 1st Opposite Party for <br /> Contd.......2)<br /> 2<br /> treatment on 01.04.2003. On 02.04.2003 the hysterectomy was carried out by the 2nd Opposite Party. The surgery of the 2nd Opposite Party was in a rash and negligent manner and it resulted injuries to the bladder of hybrid uterus and subsequent repair of the bladder was done on the same day. On the post operation day, symptoms of the vesico vaginal fistula was diagnosed and the bladder leaked. The Complainant underwent treatment for a period of 25 days and was discharged with an advice to take rest. The leaking of bladder was persistent for which the Complainant was again admitted in the 1st Opposite Party's Hospital on 19.5.2003 for vesico vaginal fistula. The 2nd operation was evented only because of the rash and negligent hysterectomy conducted by the Opposite Party. The 1st Opposite Party demanded Rs.7,000/- as an advance for the 2nd operation. Even after payment of some amount as advance for the 2nd operation.<br /> <br /> 2. The Complainant got discharged from hospital and admitted in Malabar Hospital Kozhikode. The Complainant underwent a major operation on 24.5.2003 at Malabar Hospital Kozhikode and the treatment was continued there as an inpatient from 22.5.2003 to 05.06.2003. The expert Doctors of the Malabar Hospital opined that the bladder injury could have been treated without any delay by the concerned who did the operation. Further the injury of the bladder is from serous in nature and it could have been treated without losing time by the assistance of urologist and Surgeon and more over the same was not informed to the patient. The hysterectomy of patient is to be conducted by the Urologist. The 2nd Opposite Party operated the Complainant though she is not an expert in Urology. After discharging from the Malabar Hospital Kozhikode on 05.6.2003 the Complainant was again admitted on 15.07.2003 and had undergone an another major operation on 16.7.2003. Subsequently the Complainant was discharged from the hospital only on 09.8.2003. The injuries caused on the organ of the Complainant was such in nature and for further treatment the Complainant was admitted in <br /> (Contd....3)<br /> 3<br /> Kasthoorba Hospital Manipal in Karnataka State for expert treatment. The Complainant was again undergone an another major operation on 29.10.2003 and treatment continued there for 19 days in total. The Complaint had undergone four major operations due to the rash, negligent and unauthorised operation of the 2nd Opposite Party in the 1st Opposite Parties Hospital. The life of the Complaint was thrown in to darkness. The Complaint became a bedridden patient dropping her business. The hysterectomy and mental shock haunted the Complainant severely along with unbearable monitory loss. The hysterectomy of the 2nd Opposite Party in careless manner resulted all the trouble and physical problems to the Complainant. The 2nd Opposite Party could have referred the patient for an expert management under to a urologist. Instead the Complainant was subjected to hysterectomy by the 2nd Opposite Party who is in want of skill sufficient in the concerned treatment.<br /> <br /> 3. The Complainant mainly relied on the income from clinical laboratory at Hunsur, Karnataka to eke out her day to day life along with her family. There was income for Rs.10,000/- per month from the concerned. The Clinical Laboratory was closed as a result of operations. The Complainant had to take a shelter of treatments one after other in hospitals near about 100 days. The physical and mental pain caused upon the Complainant is beyond expressions. The complainant had to spent Rs. 2,00,000/- for the treatment expenses. The 2nd Opposite Party along with the 1st Opposite Party are jointly and severally liable to compensate the complainant for the loss and damages resulted by the deficiency of service and negligence. There may be an order directing the Opposite Party to give the Complainant the amount spent for medicine and treatments Rs.2,00,000/-. Towards the loss of income from April 2003 Rs.80,000/-, the traveling expenses to the hospital Rs.15,000/-, extra nourishment Rs.20,000/-, bystanders expenses 20,000/-, Compensation for permanent physical disability 3,00,000/-, compensation for mental shock for the Complainant Rs.s1,00,000/-, Compensation for mental shock and agony to <br /> (Contd......4)<br /> 4<br /> the family of the Complainant Rs.1,00,000/- and for the loss of earning capacity Rs.2,00,000/- in total Rs. 11,35,000/- is to be given to the Complainant. But the claim is limited to the tune of Rs.10,00,000/-.<br /> <br /> 4. The Opposite Parties filed version on their appearance. According to the 1st Opposite Party there is no deficiency in service on their part. The allegations in the complaint are not based on facts and truth. The 2nd Opposite Party has been working in the Fathima Matha Mission Hospital run under the directorship of the 1st Opposite Party. The Complainant was examined on 28.3.2003. On thorough examination it was known to 2nd Opposite Party that the Complainant was having high fibroid uterus with endometeriosis in respect of it. The Complainant was advised for abdominal hysterectomy and admitted in the hospital on 01.04.2003. The surgery was fixed on 01.04.2003 after sufficient medical consultation and clinical tests. The abdominal hysterectomy was done on 02.04.2003 by 2nd Opposite Party after receiving the written consent. The intra operation evaluated that the Complainant was having multiple intramural fibroids, ruptured (L) ovarian cyst, normal ® ovary, endometriotic patches over anterior and posterior uterine walls and pouch of Douglas and dense bladder adhesions. While the 2nd Opposite Party released the bladder adhesions separating bladder from anterior uterine wall, the injury to bladder vesico vaginal fistula was recognized. The 2nd Opposite Party after the detection of the bladder injury repaired the bladder immediately with assistance of the Surgeon in the 1st Opposite Party's Hospital. There is no deficiency in service or negligence on the part of the Opposite Party. The abdominal hysterectomy of the Complainant was done in maximum care and caution. The injury which caused on the Complainant is possible during hysterectomy. The allegation of the Complainant that hysterectomy was not done with the assistance of the urologist is ill motivated. The bladder repair was done by the Doctor V.J. Sebastian the Surgeon in the hospital. Normal hysterectomy operation is done by the Gynecologist. The assistance of Urologist is not necessary. <br /> 5<br /> 5. The 2nd Opposite Party is an expert and experienced Gynecologist. More over the bladder repair was done by the Assistance of the General Surgeon. The Complainant was attended properly, on the 8th post operative day the urologist consultation was done when found first the bloodstained urine. The bladder wash was given and Catheter was changed. The consultation of urologist was later continued. The vesico vaginal fistula identified on 15.4.2003. The patient was on gatifloxacin for 5 days and continued urinary catheterisation. The patient was later readmitted on 19.5.2003 for vesico vaginal fistula repair. The Complainant got discharged upon her desire and the vesico vaginal fistula repair was done at Malabar Hospital Kozhikode. The demand of Rs. 7,000/- as advance for operation is false and without any bonafides. The negligence on the part of the 2nd Opposite Party reasoned for major operation at Malabar Hospital on 24.5.2003 is also denied. The averment in the complaint that if any injury caused on the bladder it aught to be repaired immediately which was not done are also denied by the Opposite Party. In the Complainant herself it is admitted that the bladder repair was done on the same day of the occurance of injury. The allegation of the Complainant that the injury on the bladder was not informed to her and patient was not referred to an expert management is absolutely baseless and denied by the Opposite Party. The bladder was repaired and treated it properly as a result the leakage from the bladder was ruled out with the aid gension violet push in to the bladder. The Complainant and her husband were convinced of those things. The vesico vaginal fistula was later detected in the patient resulted from the impaired healing of the repaired bladder wound and not because of adequate repair. Upon the advice of the urologist further treatments were also offered to the Complainant. The Complainant and her relatives reiterated from the readiness of undergoing the repair of the vesico vaginal fistula. The treatments of the Complainant in Kasthoorba Medical College, Manipal is not known to the Opposite Party. The other allegation of the Complainant that she had undergone four major operations due to the rash and negligent operations of the 2nd Opposite Party at the first Opposite Party's hospital is false <br /> (Contd......6)<br /> 6<br /> and denied. The treatment rendered from the first party's hospital has not caused any monetary loss or mental pain to the Complainant. <br /> <br /> 6. The averment the complaint that the Complainant is an earning member in the family and the income from the employment is stopped are nothing but allegation which the Opposite Party does not admitted. The continuous treatment made the Complainant to take rest continuously abstaining from doing work are in the exaggerations of falsehood. The amount spent as alleged by the Complainant is highly exaggerated and the mental shock and sufferings are denied by the Opposite Party. There is no negligence or carelessness on the part of the Opposite Party. The 2nd Opposite Party being the member of Indian Medical Association working under the 1st Opposite Party's institution, if any liability arises it is to be cast upon the 2nd Opposite Party and the 1st Opposite Party is to be absolved. There is no vicarious liability. The amount claimed by the Complainant is not based on any calculations instead it is only the fruit of imagination. The complaint is to be dismissed with compensatory cost of Rs.10,000/- under the provisions of the act.<br /> <br /> 7. The 2nd Opposite Party filed version. The deficiency in service and negligence of the Complainant was done on 28.3.2003 at the 1st Opposite Party's Hospital. The Complainant had low eche and irregular bleeding P.V. Upon the detail examination and investigation including the scanning observed fibroid uterus with endometeriotic. The 2nd Opposite Party adviced abdominal hysterectomy and admitted the patient in the hospital on 01.4.2003. The surgery was fixed on 02.04.2003. After Clinical Laboratory evaluations with the written consent of the Complainant on evaluation it was noted that the Complainant had uterus having multiple intramural fibroids ruptured (L) ovarian cyst, normal ® ovary endometriotic patches over anterior and posterior uterine walls and pouch of Douglas and dense bladder adhesions. <br /> (Contd......7)<br /> 7<br /> 8. While removing the bladder adhesion and releasing the bladder with due care and diligence accidental injury caused to the bladder. Without leaving no time, injury was patched up with the assistance of Surgeon in the hospital after the hysterectomy and vault closure, the leakage from the bladder was checked with gentian violet pushed in to the bladder. The antibiotic (Inj. monocef and Inj. gentamycin) and continuous Catheter drainage applied on the complaint. Bladder wash done and the catheter was changed on 8th post operative day when the urine found to be bloodstained. Later Inj. Amikacin and Inj. metrogy were also administered on the 10th post operative day on 12.4.2003. Frank leaking of urine through the vagina was noted. On observation vesico vaginal fistula was diagonised and confirmed on test on 23.4.2003. The patient was discharged with an advice of Urologist review after 2 weeks. From 23.4.2003 onwards for a period of 5 days continuous catheterisation and Gatifloxacin was administered after consultation with the Urologist when the Complainant was again admitted in the 1st Opposite Party's hospital on19.5.2003 for vesico vaginal fistula repair on 21.5.2003. The Complainant was discharged on 20.5.2003 for reference to higher center. The injury to the vesico vaginal fistula are resulted not due to lack of care and caution on the part of the 2nd Opposite Party, where as it is an expected complication in separating bladder from anterior uterine wall. The bladder repair was done immediately by the surgeon V.J. Sebastian of the 1st Opposite Party's hospital. The abdominal hysterectomy of the Complainant done with due care and caution after taking of precautionary measures. The allegation that hysterectomy operation was done without the assistance of Urologist is highly ill motivated and unfounded and hence denied. More over hysterectomy operation routinely and regularly done by Gynecologist and for which assistance of Urologist is not necessary. The 2nd Opposite Party is a well qualified and experienced Gynecologist a safe and successful hysterectomy surgeries were done by there. There is no latches on the part of the 2nd Opposite Party, Urology consultation was done 1st and 8th post operative day. When the bloodstained urine found on which is followed by the change of cathedral and bladder wash. <br /> (Contd......8)<br /> 8<br /> Afterwards the urology consultation was continued on 19.5.2003. The complainant was admitted for vesico vaginal fistula repair. But upon interest of the patient the vesico vaginal fistula repair was done from Malabar, Hospital Kozhikode. The Complainant was informed of the accepted complication of vesico vaginal fistula and such other complication of hysterectomy prior to the operation and consent was taken from the party. The allegation as such the advance of Rs.7,000/- demanded is absolutely false. Further the expert Doctors of the Malabar Hospital also informed the Complainant that the bladder injury is very serious and ought to be repaired with the assistance of the expert Doctor immediately after tracing out the injury are ill motivated. The Complainant herself admitted that the bladder repair was done on the same day when the injury is disclosed.<br /> <br /> 9. The allegation in the complaint as such the Doctors from Malabar Hospital informed the injury very serious in nature and it would have been repaired immediately on tracing out are denied. It is motivated to make such a feel that the injury was not repaired in time. The injury was noted at the very moment of causing it and the repair effected with assistance of surgery. All the facts regarding the injury and subsequent treatments were fully conversant with the Complainant and her relatives. The vesico vaginal fistula is a known complication of hysterectomy resulted from impaired healing of the repaired bladder wound and not because of inadequate in repair. The consultation with Urologist was done when noted and the treatment on observation of the Urologist was given to the patient. The Complainant and her relatives upon their own interest withdrawn from the vesico vaginal fistula repair at the 1st Opposite Party's Hospital. The Opposite Party has no knowledge of the treatment of the Complainant in Kasthoorba Hospital Manipal. The rashness and negligence attributed upon the Complainant is with anterior motives and they are denied also. <br /> <br /> (Contd......9)<br /> <br /> 9<br /> 10. The 2nd Opposite Party is an experienced and well qualified Doctor with experience of effectively and efficiently done abdominal hysterectomy prior to the treatment given to the Complainant. The occupation and the dependency of the Complainants family is not known to the 2nd Opposite Party. The amount alleged as spent by the Complainant for treatment the highly exaggerated and unfounded. There is no negligence or carelessness. More over the 2nd Opposite Party is only paid employee working under direction and control of the 1st Opposite Party without prejudice to the contention raised. If any liability is likely to be caused upon this 2nd Opposite Party is to be absolved and the 1st Opposite Party is vicariously liable to be compensated. The expenses in various takes not sustainable instead based on imaginations of the Complainant. The Complainant is not entitled for any compensation the complaint is motivated with a desire of the Complainant to harras the 2nd Opposite Party. The complaint is to be dismissed with compensatory cost.<br /> <br /> 11. Points in consideration are.<br /> 1.Is there any deficiency in service on the part of the Opposite Party in the <br /> treatment of the Complainant?.<br /> <br /> 2.Relief and cost.<br /> <br /> 12. Point No.1:- The Complainant is examined as PW1. Ext. A1 to A13 are marked for the Complainant. Ext.A1 series are the Medical Bills 208 in numbers. The total amount spent by the complainant towards the treatment and medicines are Rs.72,213.77. Ext.A2 is the certificate issued to the Complainant as per that the Complainant underwent vesico vaginal fistula repair on 24.05.2003 and had undergone another surgery on 15.07.2003. Further the Complainant had undergone hysterectomy before 02.04.2003 elsewhere. The discharge summary issued from the <br /> (Contd......10)<br /> 10<br /> Malabar Hospital and Urology centre is the Ext.A3, which is the summary of discharge followed by the second operation on 15.07.2003. Ext.A4 is the another discharge summary issued from the Malabar Hospital related to the 1st operation on the Complainant dated 22.05.2003. After the 1st operation for abdominal hysterectomy vesico vaginal fistula was diagonised. Urine leak noted, review was advised after three weeks of the 2nd operation. The Complainant underwent treatment at Kasturba Hospital, Manipal. The certificate issued to the Complainant on 13.11.2003 from Kasturba Hospital, Manipal is the Ext.A5 and Ext. A6 is the treatment certificate of the same hospital given to the Complainant. The Complainant has the certificate of the lab technician course, the copy of it is Ext.A12. The copy of the licenses issued to the Complainant by the town Municipal Council, Hunsur is Ext.A13. The 1st Opposite Party has not tendered oral testimony. The 2nd Opposite Party is examined as OPW1 and the case sheet of the treatment given from 1st Opposite Party's Hospital is Ext.B1. The Hospital run by OPW1 is having specialists in Urology, Gynecology, Surgery and Ortho. The 2nd Opposite Party is having diploma in Gynecology apart from M.D, the bachelor degree from Itally. The operation of the Complainant was on 02.04.2003. The report of operation in Ext.B1 evinces that the bladder repair was done by the surgeon after hysterectomy vault closure was done. The bladder leak is checked. The Complainant underwent operation on 02.04.2003. The 2nd Opposite Party testimonied that the operation turned to be a complicated one towards the end of the operation. The fistula repair due to the injury of hysterectomy was done by the Surgeon in the 1st Opposite Party's hospital who is examined as OPW2. The oral testimony of the second Opposite Party is that in the case of a serious operation the possibility of infection is there from four to five days after operation. The Urologist working in the 1st Opposite Party hospital is not a full time employee however on the particular day of operation he was on duty and even afterwards. The patient was referred to the Urologist on the 8th day of post operation. The Complainant was driven into complication of Surgery as admitted by the second Opposite Party. Due care and caution in the case of the patient was not taken. The <br /> (Contd......11)<br /> <br /> 11<br /> transference of the patient from the post operative care to the other ordinary room on the very next day tantamount to the lack of caution and care. The patient was subsequently attended by nursing student till 1 PM next day as per the record of nursing student. The operation was at 2 PM on 02.04.2003. On 03.04.2003 at 11 AM the patient was shifted from the post operative room. As an expert knowing the consequences of infection if the bladder injury caused due care and caution would have been taken in the further treatment of the patient which found lacking. The patient was not referred in time to the treatment of urologist though the service of urologist was available in the hospital itself.<br /> <br /> 13. The Complainant still undergoes treatment under PW2. The Doctor who treats <br /> the patient now. The leaking of urine according to him will be continued. The possibility for absolute recovery is considerably less. The expert Doctor further deposed that infection if continued it will affect the normal life of the Complainant. The Chief Urologist of Malabar Hospital is examined as witness on the side of Opposite Party as OPW1. PW1 and OPW1 treated the Complainant alike. According to the opinion of these two experts if any injury evented on the bladder it would have been informed the patient and the patient is to be sent for expert management without delay. The consultation of the Urologist was done on the 8th day after operation. The treatment chart in Ext.B1 dated 12.4.2003 is the reference note of the 2nd Opposite Party to the Urologist Dr. Santhosh it is recorded “Kindly see this patient with leaking after 10th POD of hysterectomy and bladder injury. It is further continued informed the urologist will see on Monday. This also confirms that the contention of the Opposite <br /> Party that the consultation with the Urologist on the 8th day is incorrect. According to the Complainant she had undergone treatment in the Opposite Party's Hospital for a period<br /> of 25 days. The bill sheets and the nurses daily records in Ext.B1 shows <br /> Contd......12)<br /> <br /> 12<br /> that the Complainant was admitted in the hospital on 01.04.2003, the operation was done on 02.04.2003 and at a stretch the patient continued as an inpatient in the hospital till 23.4.2003. The preevaluation required before operation was not effectively done. The Complainant was again readmitted in the first Opposite Party's Hospital on 19.5.2003. From the above inference the point No.1 is found in favour of the Complainant.<br /> <br /> 13. Point No.2:- The Complainant was in the age of 44 years having a Clinical Laboratory at Hunsur in Karnataka State. Ext.A13 is the license given to the Complainant by the Town Municipal Council having a certificate of Laboratory Technician Course issued by the department of Clinical Pathology. Ext.A.12 is the Photo copy of the certificate. The Complainant produced the bills of medicines and treatment charges. Ext.A1 series 208 in numbers in total is of Rs.72,213/-. The Complainant in affidavit stated that for treatment, traveling and other expenses for bystanders spent more than Rs. 2,00,000/-. She underwent four major operations and still continued the treatment of the expert in Urology at Malabar Hospital. The Complainant does not anticipate the complete recovery as opined by the PW2 who treats the patient. The medical bills and the treatment charges apart from other expenses are not fully produced according to the Complainant. The clinical laboratory of the Complainant ceased to exist as a result of the bladder injury and subsequent improper treatment of the Opposite Party. The mental shock pain and suffering of the Complainant is to be compensated by the Opposite Party.<br /> <br /> In the result, the Complaint is partly allowed in different counts the following. The Opposite Parties are directed to give the Complainant Rs.1,50,000/- (Rupees One Lakh Fifty thousand only) towards the expense of medicine and treatment charges, loss of income Rs.60,000/- (Rupees Sixty thousand only), Traveling Expenses Rs.15,000/- (Rupees Fifteen thousand only), <br /> (Contd....13)<br /> 13<br /> Mental Shock Rs.50,000/- (Rupees Fifty thousand only), Extra nourishment Rs. 20,000/- (Rupees Twenty thousand only), Pain and suffering Rs.50,000/- (Rupees Fifty thousand only), Loss of earning capacity Rs.60,000/- (Rupees Sixty thousand only), Compensation Rs.1,50,000/-(Rupees One Lakh Fifty thousand only) along with cost Rs.5,000/- (Rupees Five thousand only). The Opposite Parties are directed to give the amount in total Rs.5,60,000/- (Rupees Five Lakh Sixty thousand only) to the Complainant jointly or severally within one month from the date of this order.<br /> <br /> Pronounced in open Forum on this the 21st day of May 2008.<br />