BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MYSORE-570023

CONSUMER COMPLAINT NO.8/2019

DATED ON THIS THE 21^st November 2022

Present:   1) Sri. B.Narayanappa

M.A., LL.B., - PRESIDENT  

                     2) Smt.Lalitha.M.K.,

M.A., B.A.L., LL.B., - MEMBER  

                        3) Sri Maruthi Vaddar,

                                                B.A., LLB (Special)  - MEMBER

Sri B.NARAYANAPPA,

PRESIDENT

1.       This is a medical negligence complaint filed by complainant Sumisha, W/o Suresh resident of Mysuru against the OP Doctor Victor Menezes, Mithi Surgery Hospital, Mysuru  praying to direct the OP to pay a sum of Rs.2,20,000/- towards hospital expenses with interest, Rs.5,00,000/-towards physical and mental sufferings and Rs.50,000/- towards loss caused in the bakery business of the complainant and to grant such other reliefs as this Commission deems fit to grant.
2.       The brief facts are that:-

In the month of May 2017 the complainant gets stomach pain, therefore, her husband took her to Dr. Roopa Chakravarthi clinic at J.P.Nagar for treatment and advice.The said doctor advised the complainant to get scan in order to make correct diagnosis.Accordingly, scan was done and noticed that the complainant is having extra grown in the uterus, as such it has to be removed by surgical operation and further the doctor advised for medication for a period of 10 days, but extra growth did not subsidized.Therefore, the Dr.Roopa Chakravarthi advised to undergo surgical operation.The OP was familiar in the field of uterus surgical operation.Therefore, the complainant went to OP for removal of extra growth of the uterus in the hospital of OP and OP suggested the package of Rs.45,000/- and the complainant had paid the said sum on 21.07.2017 and got admitted to OP Mithi surgery hospital.On the same day from 11.00 am to 2.00 pm the OP has conducted the surgical operation to the complainant and fixed tube for urinary passage and on 23.07.2017 the complainant was discharged from the hospital.On the next day, she had complication in passing the motion, it was noticed that motion was started to come through the tube fixed by the OP.Therefore, the complainant suffered severe pain and approached OP for consultation.After checkup, the OP once again advised to solve the problem.But, the problem was not solved and also pain.ON 31.01.2017 she met OP in the hospital for examination, OP advised to take consultation from Dr.Girish of Urology Department, JSS Hospital, who examined the complainant in the clinic and advised the complainant to admit to JSS Hospital for further treatment.The doctor noticed that there is a surgical complication to the urinary tract and also to the rectum while conducting the surgical operation of uterus by OP, this was shocking news for the complainant due to which she undergone mental stress.Therefore, it is alleged that without taking proper care and protection, the OP conducted the operation negligently in order to damage to the urinary and rectum which is unwarranted.Though the OP made promise that even if any problem arises, he will take care of entire expenses and damages caused to complainant, but he failed to do so.The complainant got admitted to JSS Hospital on 01.08.2017 for correction of damages caused by OP to the urinary tube and rectum and spent Rs.1,25,000/- towards surgery expenses.Dr.Girish had conducted major surgery for urinary passage and further advised that one more surgical operation has to be conducted to rectum after completing 3 months.The complainant was inpatient till 16.08.2017 in the J.S.S. hospital and undergone lot of pain and sufferings due to the major surgery which is unwarranted and the same was caused due to negligence act of OP while conducting the surgical operation.When the complainant’s husband met the OP and asked him that why he has done all these negligent act of surgical operation.The OP abused the complainant’s husband in filthy language and asked him to go out of the hospital otherwise he will file complaint.The husband of the complainant gave complaint before District Health and Welfare office for taking action against OP, but no proper steps was taken.On 25.11.2017 as per the advice of doctor attached to JSS hospital she got admitted and she was discharged on 04.12.2017 and spent Rs.50,000/- towards hospital expenses.The husband of the complainant had filed complaint before the Krishna Raja Police against OP which was registered for the offence under Section 304(a) of IPC in Crime No.253/2017.The complainant even now cannot do the normal house hold work and as well as the bakery business which she was doing prior to the uterus operation, for which complainant incurred loss to extent of Rs.50,000/- asshe was unable to do bakery business. Therefore, it is alleged deficiency in service and medical negligence on the part of OP.Hence, this complaint.

3.       After registration of this complaint, notice was ordered to be issued to OP.  In response to notice, OP appeared before this Commission through his counsel and has filed written version contending that the complaint is not maintainable either in law or on facts and same is liable to be dismissed and admitted the averments made in the para 4 of the complaint that the complainant got admitted to OP hospital on 21.07.2017 upon agreed payment of cost of the procedure to be conducted by OP. The procedure had taken place on the same day successfully and the patient was discharged on 23.07.2017 without any complications.  The patient and her husband were informed about the late complications and also recorded and submitted that in any surgery there is no guarantee that complications would not develop subsequently and denied the averments made in para 5 to 10 of the complaint and contended that the complainant is not entitled to any of the reliefs sought in the complaint as there is no negligence nor deficiency in service on the part of OP and it is further contended that on 21.07.2017, the complainant got admitted to OP hospital and the Laparoscopic hysterectomy and bilateral Salpingooophorectomy was conducted as per the medical Rules.  The surgery was successful and patient was discharged on 23.07.2017.  On 25.07.2017 the patient came to the OP and reported some complications and the Op diagnosed the same and referred to Dr.Girish, Urologist at JSS Hospital, Mysuru.  The complications are not due to negligence on the part of the OP nor the result of the surgery conducted by the OP.  Every assistance is given to the patient while in JSS Hospital and every document is furnished to complainant to claim insurance.  The complainant claimed insurance towards cost of the surgery.  The OP is a competent surgeon having name in the medical circle in Mysore.  The patient was fully recovered the husband of the complainant had brought 8 people claiming to be members of some sangha of Ashokpuram and threatened with dire consequences and demanded Rs.1,00,000/-, there is no negligence on the part of OP and also deficiency in service only with an intention to wrongful gain, the present complaint is filed.  For all these reasons, prays to dismiss the complaint.                    
4.        The complainant has filed her affidavit by way of examination in chief and the same was taken as P.W.1 and got marked the documents as Ex.P.1 to Ex.P.16 and in support of her case, she got examined P.W.2 and P.W.3 and they were fully cross-examined.    
5.     On the other hand, the OP also filed affidavit by way of examination in chief and the same was taken as R.W.1 and he was also fully cross-examined.
6.       We have heard the arguments of both sides.  The counsel for OP has also filed written arguments.    
7.        The points that would arise for our consideration are as under

1. Whether the complainant proves that the alleged deficiency in service and medical negligence on the part of the opposite party and thereby she is entitled to the reliefs as sought for?
2.  What order?

8.       Our findings on the aforesaid points are as follows:

      Point No.1 :- Partly in the affirmative.

      Point No.2 :- As per final order for the following

:: R E A S O N S ::

9.          Point No.1:- It is not in dispute that the complainant got admitted herself in OP hospital in the month of July 2017 for removal of extra growth in her uterus on the advice of the doctor attached to OP hospital and the OP suggested package of Rs.45,000/- for conducting surgical operation of uterus of the complainant.  The complainant had paid the said sum and the OP conducted the surgical operation to the complainant on 21.07.2013 and shifted the complainant to ward by fixing the tube for urinary passage and she was discharged on 23.07.2017 and it is also not in dispute that on the next day, the complainant had complication in passing the motion and it was noticed that the motion started to come through the tube fixed by the OP.  Therefore, she suffered with severe pain and approached Op who after check-up advised and promised to solve the problem, but it was not solved.  Again on 31.07.2017 she met OP hospital who advised the complainant to take consultation of Dr.Girish of Urology Department, JSS Hospital, Mysuru.  It is also not in dispute that Dr.Girish of JSS hospital examined the complainant and noticed that there is surgical complication to the urinary tract and also to the rectum while conducting the surgical operation to the uterus of the complainant by OP.  This was shocking news to the complainant for which she undergone mental stress and Dr.Girish also stated that without taking proper car and protection, the OP conducted an operation negligently which results in damaging the urinary tract and rectum and it is also specific contention of the complainant that she got admitted to JSS Hospital on 01.08.2017 on the advice of the Dr.Girish and undergone major surgery to correct the damages caused by OP to the urinary tract and rectum and she spent Rs.1,25,000/- towards surgery expenses and Dr.Girish also advised the complainant that she has to undergo for one more operation after three months for correction of rectum and she continued as in-patient  till 16.08.2017 and on the advise of Dr.Girish of JSS Hospital she got admitted to hospital on 25.11.2017 wherein Dr.Girish conducted surgical operation to correct the rectum and she was discharged on 04.12.2017.  As such, the complainant spent a sum of Rs.50,000/- towards hospital expenses.  It is also not in dispute that due to negligent act committed by OP, the husband of the complainant lodged a complaint with Krishnaraja Police Station which was registered in Cr.No.253/2017 for the offence under section 304(a) of IPC and it is further alleged by the complainant that due to sufferings suffered by the complainant in view of negligent surgical operation was conducted by OP she was unable to do her bakery business for a period of one month, as such she incurred loss of Rs.50,000/- in her bakery business.
10. The complainant got marked Ex.P.1 discharge summary of OP hospital which clearly disclose that on 21.07.2017 the complainant got admitted to OP hospital and the doctor attached to OP hospital conducted surgical operation to complainant for removal of extra growth in her uterus.  Ex.P.3 is the in-patient bill issued by OP charging a total sum of Rs.45,000/- towards surgical operation conducted by OP.  Ex.P.4 is the medical records of various tests conducted on the complainant.  The complainant also produced discharge summary issued by JSS Hospital, Mysuru which clearly goes to show that complainant got admitted to JSS Hospital on 25.11.2017 and she was discharged on 04.12.2017 which clearly goes to show that the patient /complainant underwent right ureteric re-implantation with psoas hitch with loop ileostomy and also got marked Ex.P.13 medical bill issued by JSS Hospital and according to the complainant, she spent medical expenditure of Rs.1,75,000/- in JSS Hospital, Mysuru.  The complainant also produced copy of complaint lodged by her husband with Krishnaraja Police Station and Ex.P.15 is the FIR registered in Cr.No.253/2017 of K.R.Police Station on the complaint given by the husband of the complainant for the offence under Section 304(a) of IPC.  She also produced and got marked Ex.P.16 the medical records issued by JSS Hospital for having treated the complainant as in-patient for a period of more than 20 days.  It is the specific allegation of the complainant that the OP while conducting the surgical operation on her for removal of extra growth in her uterus negligently conducted operation which results in causing damages to her urinary tract and rectum and after surgery, the OP fixed the tube for passing urine, but on the next day of discharge from the OP hospital, she had complication and noticed that the motion was started to pass through the tube fixed for passing the urine which caused severe pain to her. Therefore, on the advise of the doctor attached to OP hospital, she got admitted to JSS Hospital and took treatment with Dr.Girish who on examination of the complainant has stated that there is a surgical complications to the urinary tract and also rectum while conducting the surgical operation by OP without taking proper care and protection, the OP conducted operation negligently which results in causing damage to the urinary tract and rectum. 
11. In order to prove the aforesaid allegations made by the complainant against the OP, the complainant got examined herself by way of filing affidavit and same was taken as P.W.1.  In her affidavit, she has reiterated and reaffirmed the contents of the complaint averments.  In support of her case, the complainant got examined P.W.2 Dr. Mahesh S.Shetty of JSS Medical College, Mysuru.  In his chief examination lead by learned counsel for complainant he has stated that on 01.08.2017 the complainant was admitted as in-patient in their hospital with history of bleeding of urine and motion vagina as she had undergone surgery 10 days prior to the admission and the patient was discharged on 17.08.2017.  On 04.08.2017 he and Dr.Girish have conducted surgery.  There was injury in the first surgery i.e. rectum part which was sutured still there was injury. Therefore, they sutured the rectum and done temporary loop ileostomy.  Again on 25.11.2017 the complainant admitted to JSS Hospital and she was discharged on 04.12.2017.  On 25.11.2017 they inserted small intestine in proper place and arranged for motion and got marked Ex.P.15 and Ex.P.16 the medical records of JSS Hospital for having treated the complainant.  From the chief examination of P.W.2, it is crystal clear that they noticed that there was injury in the first surgery i.e. rectum part conducted by OP.  Therefore, from the chief examination of P.W.2, it is crystal clear that the OP had conducted surgical operation on the complainant negligently for removal of extra growth in her uterus and caused damages to urinary tract and rectum part.  P.W.2 in his cross-examination lead by learned counsel for OP has stated that as per records, the patient was suffering from complicated issue. She underwent surgery for Laparoscopic hysterectomy and bilateral salpinogoophorectony done by Dr. Victor of OP hospital and during the surgery wound was sustained.  Thereafter, the patient came to him through Dr.Girish.  So from the cross-examination of P.W.2, it is also crystal clear that the Dr.Victor attached to OP Hospital had conducted surgery on complainant causing wound on the rectum part and urinary tract which was corrected by doctor attached to JSS Hospital.
12. P.W.3 Dr.Girish in his chief-examination lead by learned counsel for complainant has stated that he was earlier working in JSS Hospital, Mysuru now in Gopalagowda Hospital, Mysuru and during the year 2017 to 2019 he was working as Urologist at JSS Hospital, Mysuru.  He know that the complainant, came to Dr.Victor of OP hospital in July 2017, Dr.Victor called him to his hospital, he went there and suggested the patient to admit in JSS Hospital for treatment and he conducted examination and suggested CT scan and noticed that the injury was caused to right ureter and rectum and it was found that about 2 weeks earlier to C.T.Scan the patient underwent for hysterectomy treatment and the said injuries might have caused during the time of surgery.  So, from the evidence of P.W.3 it is crystal clear that OP while conducting surgical operation to complainant caused damages to rectum part and urinary tract of the complainant which shows that the doctor attached to OP hospital negligently conducted the operation on the complainant and subsequently it was corrected by P.W.2 Dr.Mahesh.S.Shetty and P.W.3 Dr.Girish of JSS Hospital, Mysuru.  P.W.3 in his cross-examination lead by learned counsel for OP has stated that the injury caused to ureter is less than 1%.  Such injuries are associated with hysterectomy and caused during surgery that can be recognised or noticed by surgeon.  After 7 days, he was called to check the patient, subsequently the patient was referred him, he conducted the corrective operation with the help of Dr.Mahesh.S.Shetty on the patient.  So from the cross-examination of the P.W.3 it is crystal clear that due to damage caused by Dr.Victor of OP hospital while conducting surgical operation on complainant she sustained injury on her rectum part and urinary tract which was subsequently corrected by P.W.2 and P.W.3. From the cross-examination of P.W.2 and P.W.3, it is crystal clear that due to negligent act on the part of OP, who conducted surgical operation on the complainant for removal of extra growth in her uterus, he caused damages to the rectum part and urinary tract of the complainant which results in causing severe pain to complainant which is nothing but medical negligence on the part of Dr.Victor attached to OP hospital.
13. To resist the case of the complainant, OP has been examined by way of filing the affidavit in chief and same was taken as R.W.1.  In this chief-examination Dr.Victor Menezes attached to OP hospital has stated that the complainant got admitted to his hospital on 21.07.2017 upon the agreed payment of the cost of procedure to be conducted such as Laparoscopic hysterectomy and bilateral saipingoophorectomy was conducted as per the Medical Rules and the patient was discharged on 23.07.2017.  On 25.07.2017 the patient was came to his hospital and reported some complications, he diagnosed the same and the patient was referred to Dr.Girish, Urologist at JSS Hospital, Mysuru.  The complications are not due to negligence on his part and the remaining portion of this examination in chief is in-consolense of the contention taken in the version nothing else. From the chief-examination of R.W.1, it can be gathered that after surgical operation conducted by him on the complainant and after discharge from the hospital on 23.07.2017, on 25.07.2017 the complainant came to his hospital and reported some complications.  So from this admitted version, it is crystal clear that the complainant developed some complications after surgery which was conducted by R.W.1 and reported complications to him.  Thereafter, he referred the patient to Dr.Girish, Urologist at JSS Hospital, Mysuru.  R.W.1 in is cross-examination lead by learned counsel for complainant he has stated that complainant was admitted and took treatment in OP hospital from 21.07.2017 to 23.07.2017 as in-patient. During the said period, hysterectomy surgery was conducted and the complainant was discharged on 23.07.2017 and admitted the suggestion that after discharge, the complainant visited OP hospital and complained some problem such as water and blood discharge and denied suggestion that complainant had problem while discharging motion and the motion was discharged through pipe fixed for passing of urine and admitted the suggestion that the complainant was getting stomach pain due to this problem and he came to know that the Urologist treated the complainant on 23.07.2017 and he volunteers that Dr.Mahesh.S.Shetty treated the complainant after noticing leakage in the rectum and made alternate arrangement to pass motion through the pipe and he do not know that the complainant was admitted to JSS Hospital, Mysuru on 21.11.2017 to 04.12.2017 and he clearly admits the suggestion that after he conducted operation problem arose, the said problem subsequently treated by Dr.Mahesh S.Shetty and Dr.Girish and he denied the suggestion that such problem was arose due to conducting operation by him by negligence and he do not know that due to the problem faced by the complainant she sustained loss to an extent of Rs.2,00,000/- and he admits the suggestion that complainant told him that she was doing bakery business.  From the cross-examination of R.W.1, it is crystal clear that he admitted the suggestion of learned counsel for complainant that due to operation conducted by him on complainant, problem was arose.  From this admitted version of R.W.1, it is crystal clear that what more is required to come to conclusion that due to negligent act in conducting the operation on the complainant by OP, the complainant developed some complications such as damage caused to rectum part and urinary tract of the complainant.
14. On going through the complaint averments, version of OP and the evidence of P.W.1 to P.W.3 and their cross-examination, evidence of R.W.1 and his cross-examination, and the contents of arguments advanced by both parties to complaint and the material documents placed on record, it is crystal clear that the OP while conducting the surgical operation on complainant for removal of extra growth in her uterus caused damages to rectum part and urinary tract which results in sever pain sustained by the complainant and she was forced to get admission in the JSS Hospital, Mysuru on the advise of Urologist, Dr.Girish and the Dr.Girish and Dr.Mahesh.S.Shetty conducted the corrective operation to correct the damaged urinary tract and further after three months from the date of conducting the corrective operation to urine tract one more operation was conducted to complainant on 25.11.2017 to correct the rectum part and thereby by conducting 2 operations on the complainant by Dr.Girish and Dr.Mahesh.S.Shetty attached to JSS Hospital, Mysuru rectified the problem faced by the complainant which was caused by the OP doctor while conducting the operation on the complainant. So due to medical negligence on the part of doctor attached to OP, the complainant has sustained severe pain and also she sustained loss in her bakery business and due to pain and sufferings she has undergone mental trauma and agony for which the Dr.Victor Menezes of OP is only responsible.  Therefore, the complainant is to be suitably compensated.  Therefore, we are of the considered view that the complainant has successfully proved the medical negligence caused by doctor attached to OP.  Hence, we are of the considered view that the justice will be met if global compensation of Rs.3,00,000/- is awarded on all the heads prayed by the complainant.  Hence, we answer point No.1 partly in the affirmative.
15.       Point No.2:- For the aforesaid reasons, we proceed to pass the following

:: ORDER ::

1. The complaint of the complainant is hereby allowed in part.
2. The opposite party is hereby directed to pay global compensation of Rs.3,00,000/- to the complainant within 2 months from the date of this order, failing which the said global compensation shall carry interest at 10% p.a. till payment.
3. The complainant is at liberty to take action against the opposite party under Section 72 of the C.P.Act, 2019 for non-compliance of this order.
4. Furnish the copy of order to both parties at free of cost.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Commission on this the 21^st November 2022)