Complaint filed on: 16.10.2015
Complaint Disposed on:28.04.2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUMs, AT CHICKMAGALUR.
COMPLAINT NO.133/2015
DATED THIS THE 28th DAY OF APRIL 2017
:PRESENT:
HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT
HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER
COMPLAINANT:
Smt.Pushpavathi W/o Shivalingaiah,
A/a 46 years, House wife, R/o Ajjampura
Village & post, Ajjampura Hobli, Tarikere
Taluk, Chikmagalur District.
(By Sri/Smt.K.H.Mallikarjuna, Advocate)
V/s
OPPONENT:
1.Dr.A.C.Jagadeesh,
General Surgeon,
Arekal Nursing Home,
Market Road, Birur town,
Kadur Taluk.
2.The Secretary/Chairman,
Indian Medical Association,
Karnataka Professional Protection
Scheme, I.M.A House,
Alur venkata Rao Road,
Chamarajapete, Bengalur.
(OP No.1 By Sri/Smt. Halekote A Thejaswi, Advocate)
(OP No.2 - Exparte)
By Hon’ble President Sri. Ravishankar,
:O R D E R:
The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against OP Nos. 1 and 2 alleging medical negligence on the part of Op No.1 at the time of surgery during hospitalization. Hence, prays for direction against Op No.1 & 2 to pay compensation of Rs.7,50,000/- along with interest @ 16% P.A. and Rs.5,000/- litigation expenses in the interest of justice and equity.
2. The brief facts of the complaint is that:
The complainant on 21.05.2015 approached the Op no.1 with a complaint of pain at abdomen and she was suffering from Hernia, during her visit the Op No.1 examined the complainant and told that she requires a minor operation to remove the Hernia and to avoid the pain in the abdomen and advised the complainant to admit to his hospital. Accordingly, on the advice of 1st Op complainant was admitted to his hospital on 21.05.2015, on the same day the 1st Op conducted the surgery, but during surgery due to negligence the 1st Op has caused damages to the small intestine of the complainant and not disclosed the same to the complainant. By suppressing the said damage the Op no.1 suggested the complainant to discharge from the hospital with an advice to take tablets regularly. The 1st Op intentionally concealed the damage caused by him during surgery.
After the discharge complainant noticed the severe pain in the abdomen at the surgical place, immediately she contacted the 1st Op and informed the same, for which the 1st Op has advised the complainant to go to Kasturba Hospital at Manipal for the further treatment and not taken any interest to treat the complainant. Thereafter having no option the complainant went to Kasturba Hospital, Manipal by hiring a private vehicle and admitted to the said Kasturba Hospital as an inpatient from 25.05.2015 to 10.06.2015. At the said hospital the doctors have noticed that due to failure of incisisonal Hernia repair with mesh in a local private hospital there was a damage in the small intestine, the said fact came to know after the scanning. Further at Kasturba Hospital the doctors have conducted one operation and cured the injury caused in the small intestine, during that hospitalization complainant spent nearly Rs.3,50,000/- towards the medical treatment. Further the complainant had taken a treatment as an out-patient at Kasturba Hospital. The complainant suffered such complication due to medical negligence of the Op no.1, who damaged the small intestine during the surgery for removal of Hernia. Hence, complainant prays for compensation of Rs.7,50,000/- from the 1st Op.
The 2nd Op is the insurer, who issued indemnity policy to the Op no.1 for the risk for doctors and medical practitioners under Indian Medical Association Karnataka Professional Protection Scheme. In this regard the 2nd Op also issued a policy to Op no.1 for the period from 24.03.2015 to 25.03.2016 vide policy no.KPPS 1246. Hence, Op no.1 & 2 are liable to pay a compensation of Rs.7,50,000/- for medical negligence and also prays for direction against Op no.1 & 2 to pay litigation expenses of Rs.5,000/- as prayed above.
3. After service of notice Op no.1 appeared through his counsel and filed version and Op No.2 not appeared before this Forum to answer the allegations. Hence, Op no.2 placed exparte.
4. Op no.1 in his version has contended that on 21.05.2015 the complainant visited this Op at his hospital with a compliant of pain at abdomen and suffering from Hernia and after check up this Op advised the complainant to undergo minor operation for removal of the Hernia and to avoid the pain in the abdomen and it is also true that on the same day the complainant admitted to the hospital for the operation.
On 21.05.2015 while conducting the Hernia operation to the complainant, there is no any damage to the small intestine and during conducting the surgery up to the best knowledge of this Op, he has exercised all the measure, care and precautions which are required for better treatment of the complainant. Later some complications were occurred due to her inheritance ability, for which this Op has shifted the complainant to KMC Hospital, Manipal without any delay. This Op after conducting surgery has not discharged the complainant as alleged in the complaint, while she was in the hospital as an in-patient this Op has taken all the necessary precautions and careness. This Op has obtained 2nd opinion from the senior experts and thereafter he shifted the complainant to KMC Hospital, Manipal for further treatment, but any point of time has not discharged the complainant immediately after conducting the surgery as alleged by complainant.
Op no.1 further contended that after conducting surgery she required ICU management with ventilator, after obtaining the 2nd opinion from the experts this Op decided to shift the complainant for higher treatment. The documents produced by complainant itself disclose that this Op has not committed any negligence while conducting Hernia operation. There is no any medical negligence on the part of this Op during surgery of the Hernia. The small complaints usually arose after operation the same is occurred in the complainant and also due to the nature of human bodies.
The 1st Op further contended that he has conducted the surgery to his better knowledge and earlier he has conducted number of surgeries and succeeded in all type of surgeries without any complications. Hence, this Op is not liable to pay any compensation. Hence, prays for dismissal of the complaint.
Op no.2 not at all attended before this Forum to answer the allegations, they remained exparte.
5. Complainant filed affidavit and marked documents as Ex.P.1 to P.8 and Op no.1 also filed affidavit and documents marked as Ex.R.1 to R.7.
6. Heard the arguments.
7. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is medical negligence on the part of OPs.
- Whether complainant entitled for any relief & what Order?
8. Our findings on the above points are as follows:-
- Point No.1: Affirmative.
- Point No.2: As per Order below.
: R E A S O N S :
POINT NOs. 1 & 2:
9. The case of the complainant is that he approached the Op no.1 on 21.05.2015 with a complaint of pain in the abdomen and also she was suffering from Hernia, after thorough check up the Op no.1 had advised the complainant to undergo a medical surgery for removal of Hernia, accordingly on the same day the surgery for removal of Hernia was conducted. During the surgery the Op no.1 negligently damaged the small intestine of the complainant and not disclosed the same fact after the operation and after discharge complainant noticed a severe pain in the abdomen. Immediately she went to Op no.1 with a pain in the intestine, for which after check up Op no.1 advised the complainant to admit at Kasturba Hospital, Manipal for further treatment. Accordingly, complainant went to Kasturba Hospital at Manipal on 25.05.2015 and admitted as an in-patient up to 10.06.2015. During her hospitalization the damage intestine was noticed after scanning and the said hospital authorities have told that the damage was caused to the small intestine at prior surgery held on 21.05.2015 for removal of Hernia, due to which the intestine was damaged. Accordingly, the said damage was cure and discharged. The complainant suffered pain and irritation due to medical negligence at the time of surgery for removal of the Hernia, for which complainant constrained to approach Kasturba Hospital for rectification. She also spent nearly Rs.3,50,000/- towards medical treatment at Kasturba Hospital and also spent another miscellaneous expenses for travel and other expenses. Due to negligence on the part of Op no.1 the complainant suffered financial loss. Hence, prays for compensation of Rs.7,50,000/- along with miscellaneous expenses from Op no.1 & 2.
10. On contrary the Op no.1 had taken a contention that he has not committed any error or negligence during surgery on 21.05.2015 and also contended that after surgery he had not discharged the complainant, instead of that after taking the second opinion from experts he referred the complainant to Kasturba hospital for better treatment. Hence, submits no medical negligence on the part of himself and denies for payment of the compensation.
11. On going through the pleadings, affidavits and documents produced by both complainant and Op no.1, we noticed that after the operation at 1st Op hospital the complainant went to Kasturba Hospital on 25.05.2015 and admitted for further treatment as per discharge summary, Ex.P.4 we noticed that she reported to the hospital with a perforation peritonitis traced at Kasturba Hospital, Manipal after noticed that she has a history of surgery for incisisonal Hernia and prolapse and she complaints distention of abdomen with diffuse pain since 3 days and post operative, they also noticed that she was not passed stools, No flatus. After examination they have given a treatment as follows:
PATIENT CAME FROM A LOCAL PRIVATE HOSPITAL ON 25/05/2015 TO CASUALTY WITH SERVERE ABDOMINAL PAIN AND DISTENTION DUE TO FAILURE OF INCISISONAL HERNIA REPAIR WITH MESH IN A LOCAL PRIVATE HOSPITAL DONE ON 21/05/2015. IMMEDIATELY CECT AND ULTRASOUND ABDOMEN ARE DONE, DIAGNOSED WITH PERFORATION PERITONITIS. SHE GOT OPERATED ON 26/05/2015 WITH EXPLORATORY LAPAROTOMY+SMALL INTESTINE RESECTION AND ANASTOMOSIS. PATIENT WAS SENT TO ICU IN VIEW OF RESPIRATORY COMPROMISE AND KEPT 2 DAYS SHE WAS SHIFTED TO WARD WHERE SHE WAS MAINTAINED ON ANTIBOTICS. APSON BINDER WAS RECOMMENDED. PUS FOR CULTURE SENSITIVITY WAS SENT ON 04/06/2015 WHICH CAME AS ENTEROCOCCUS FAECIUM SENSITIVE TO LINID. SHE IMPROVED SYMPTOMATICALLY AND HENCE DISCHARGED.
After discharge the complainant filed this complaint alleging medical negligence on the part of Op no.1 and prays for compensation for medical negligence from Op no.1 and 2, she also produced receipts issued by milaralingeshwara tours and travels to show that she travelled from her place to manipal regularly and spent certain amount towards travelling. The Op no.1 also produced documents such as consent letter marked as Ex.R.1, ECG Report marked as Ex.R.2, Blood Report marked as Ex.R.3, Altra scanning Report marked as Ex.R.4, Case sheet marked as Ex.R.5 and Nurse daily Report marked as Ex.R.6 and also filed receipt for hiring ambulance to send the complainant to KMC Hospital, Manipal marked as Ex.R.7. On going through the documents produced by Op no.1 we noticed that the Op no.1 has conducted the surgery on 21.05.2015 and she was inpatient up to 24.05.2015. Thereafter in the case sheet i.e., Ex.R.5 we noticed the Op no.1 has referred the complainant for higher treatment at Kasturba Medical Hospital for the reason of Perforation Peritonitis with small intestine Resection and Anastimosis and discharged on 25.05.2015 at 10.30 P.M. During course of trial we have referred the said matter to the District Surgeon for opinion with respect to the surgery and also suggested to give opinion about any medical negligence on the part of Op no.1, for which after sending the entire medical records the District Surgeon has given the opinion that there is a chances of damage to the intestine during complicated incisisonal Hernia operation and that can be noticed during the operation, but the 1st Op had not noticed the said complication, subsequently the said complication was rectified at Manipal Hospital as there is a generalized Peritonitis. But the said experts have not given opinion that there is a medical negligence on the part of Op no.1. The said complication is quite common in complicated incisisonal Hernia operation and we are of the opinion that the Op no.1 has exercised due care ad caution during the Hernia operation on 21.05.2015 at his hospital. The Op no.1 also noticed the said complications and referred the complainant to higher hospital on 25.05.2015 during her hospitalization at his hospital. Hence, it is a minor complication arose during the course of operation. The Op no.2 being insurer had indemnified the risks of the Op no.1. Hence, we are of the opinion that even though there is no any major medical negligence the complication was traced out of after surgery. Hence, the Op no.2 being insurer of Op no.1 who indemnified the Op no.1 is liable to pay a compensation of Rs.2,00,000/- which includes travelling expenses to the complainant, it is only a compensation for a medical complication found during the operation held by Op no.1. The complainant has not established the that she is entitled to get a compensation up to Rs.7,50,000/- from Op no.1. The said prayer is rejected as we found there is no major medical negligence on the part of Op no.1. As such for the above said reasons, we answer the above point no.1 and 2 in the Affirmative and proceed to pass the following:-
: O R D E R :
- The complaint filed by the complainant is partly allowed.
- OP no.2 is directed to pay a compensation of Rs.2,00,000/- (Two lakhs Rupees only) to the complainant within one month from the date of receipt/knowledge of the order, failing which the payable amount shall carry interest @ 9% P.A. till realization.
- Send free copies of this order to both the parties.
(Dictated to the Stenographer transcribed typed by her, transcript corrected by me and then pronounced in Open Court on this the 28th day of April 2017).
(B.U.GEETHA) (RAVISHANKAR)
Member President
ANNEXURES
Documents produced on behalf of the complainant:
Ex.P.1 - Office copy of the legal notice.
Ex.P.2 - Reply to the legal notice.
Ex.P.3 - Xerox copy of the 3 lab reports dtd:24.05.15 & 20.05.2015.
Ex.P.4 - Discharge summary issued by Kasturba Hospital, Manipal.
Ex.P.5 - 21 medical bills.
Ex.P.6 - 2 drug prescription slips by Manipa Hospital.
Ex.P.7 - Another prescription issued by Laxmi Hospital, Kadur.
Ex.P.8 - 4 bills issued by Travel Agent towards the transportation
dtd:10.6.15.
Documents produced on behalf of the OP:
Ex.R.1 - Consent letter given by complainant dtd:21.05.15.
Ex.R.2 - ECG Report of the complainant.
Ex.R.3 - Blood Report dtd:20.05.2015.
Ex.R.4 - Altra Sound Scanning Report dtd:15.05.2015.
Ex.R.5 - Case sheet of the complainant.
Ex.R.6 - Nurse’s Daily Report.
Ex.R.7 - Receipt towards payment to ambulance.
Dated:28.04.2017 President
District Consumer Forum,
Chikmagalur.
