IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 30th day of September, 2021.
Filed on 28-02-2018
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Smt.C.K.Lekhamma, B.A, LLB (Member)
In
CC/No.64/2018
between
Complainant:- Opposite parties:-
Smt.Adabiya, 1. Dr.Beena Sam Mathews,
D/o Aboobakker, Dept. of Gynaecology, Sanjivani-
Valiya Kizhakkethil, Multi Speciality Hospital,
Cheruvallur Muri, Kollakadavu P.O.,
Cheriyanadu P.O. Chengannur-690509
Chengannur, Alappuzha-690509
2. The Administrative officer, Sanjivani
Multi Speciality Hospital,
Kollakadavu P.O.,
Chengannur-690509
3. Dr.Joseph Manak, Dept.of Urology,
Thiruvalla Medical Mission Hospital
Thiruvalla -689101
4. The Administrative officer,
Thiruvalla Medical Mission Hospital
Thiruvalla -689101
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Complainant’s case recapitulated is as follows:-
Complainant is a lady who was working in Gulf countries as house maid from 1997 to 2012. She had been working there for about 15 years and earned a salary of Rs.23,000/- per mensem in addition to all her living expenses. Complainant is a divorced lady with two children and she was the only earning member of his family. Due to the life shattering incident that happened to her she is deprived of her earnings and has to depend upon others for her livelihood as well as to meet the expenses for her continuing treatment. The above mentioned incident had occurred due to the negligence of 1st opposite party who conducted the surgery and also due to the improper and inadequate method of treatment given by the 3rd opposite party.
2. 1st opposite party is the head of the department of gynecology at Sanjivani multi speciality hospital, Chengannur who conducted abdominal hysterectomy upon the complainant on 03.01.2013 which caused bladder injury resulting in vesicovaginal fistula to the complainant. 2nd opposite party is the administrative officer of the hospital and he is vicariously liable. After the surgery it was noticed by the 1st opposite party that during the process of surgery injury was caused to the urinary bladder resulting in continuous urinary leak through vagina. As the concerned doctor could not stop the leakage of urine effectively, for advanced treatment the complainant was sent to the department of urology, Thiruvalla medical mission hospital, Thiruvalla by the 1st opposite party on 09.01.2013. The 3rd opposite party is the doctor who attended the complainant at the said hospital and there she underwent some minor surgeries and continued the treatment as inpatient as well as outpatient till 13.05.2013 but due to his careless and irresponsible attitude towards the complainant, though she underwent treatment for about 5 months, no improvement occurred under situation worsened. So the 3rd opposite party is also liable for worsening the condition of the complainant. The 4th opposite party is the administrative officer of the hospital where the 3rd opposite party is working.
3. While the complainant was working in gulf countries, in the year 2006, she returned to India due to severe stomach pain and bleeding. She consulted M/s Sanjivani multi speciality hospital. After numerous tests and scanning the doctor diagnosed that the complainant had some growth in her uterus and prescribed medicines for the time being and further suggested that if necessary she had to undergo a minor surgery. Though the complainant took the prescribed medicines continuously for about 6 years there was no recovery. When contacted the doctor advised for a detailed check up. While the complainant was working at Muscat she was forced to quit her job there and returned to India by the end of 2012. When contacted 1st opposite party advised for surgery and complainant was admitted at the hospital on 01.01.2013 for surgery. Complainant underwent abdominal hysterectomy on 03.01.2013 but due to the negligence of the 1st opposite party injury was caused to the urinary bladder and she developed urinary incontinence. Though urinary bladder was tried to be repaired at eh same hospital the urinal leakage could not be controlled. This matter was not informed either to the complainant or to her relatives and she was admitted at the post operative ward for about 5 days. Later the doctor disclosed the real facts and she was sent to the Thiruvalla medical mission hospital for advanced treatment. Complainant was discharged from Sanjivani multi speciality hospital on 09.01.2013 and sent to Thiruvalla medical mission hospital for further treatment.
4. At Thiruvalla medical mission hospital the 3rd opposite party attended the complainant and admitted her there as IP No.154776 and she underwent minor surgeries for repairing the damage caused to the urinary bladder and was discharged with catheter on 05.02.2013. Thereafter the complainant was undergoing treatment as outpatient for about 2 months and as there was no progress in her condition and the leakage of urine continued the complainant was advised for another surgery and admitted to the same hospital on 13.04.13 and discharged on 07.05.13. Complainant was continuing the treatment for about 2 months. Complainant had to undergo surgeries for curing the abnormal communication developed in the vaginal wall and also the injury caused to the bladder. Complainant continued treatment for about 8 months. But the 3rd opposite party failed to cure the vesico vaginal fistula and to repair the ruptured urinary bladder to stop the leakage of urine. The irresponsible treatment and improper medication administered by the 3rd opposite party worsened the physical condition of the complainant. Due to the prolonged treatment the complainant suffered mental as well as physical agony and huge financial loss.
5. As a complainant had no progress from her earlier condition and the urine leakage was persisting she was forced to discontinue the treatment under the 3rd opposite party and went to the medical college hospital Alappuzha for further consultation and treatment on 27.08.13 as outpatient. Complainant was examined ad referred to department of urology and she was admitted at MCH, Alappuzha on 28.08.13 and treated as inpatient till 03.09.13 and thereafter continued her treatment as outpatient. From the doctors at urology department MCH Alappuzha the complainant came to know the real fact that she is suffering from vasico vaginal fistula which was caused due to performing of abdominal hysterectomy negligently, carelessly and irresponsibly and also caused injury to the urinary bladder which resulted the continuous leakage of urine. It was further understood that no effective treatments were done either by the 1st or 3rd opposite party to cure the difficulty. During the period of treatment at MCH, Alappuzha minor surgery and effective medicines were given which resulted in speedy recovery. For complete cure an advanced treatment as well as keyhole surgery was to be done and as per the advice of the urologist at MCH Alappuzha the complainant went to PVS hospital Ernakulam on 21.07.15 and is continuing the treatment. The complainant was admitted at PVS hospital on 10.08.15 and underwent trans vaginal VVF repair on 11.08.18 and the fistula was closed in two layers and the complainant was discharged on 13.08.15 with urethral catheter and advised to review after two weeks. The complainant had speedy recovery and was advised to continue medicines. On 06.01.18 she was admitted and treated for definite repair of the fistula and discharged on 08.01.18. The complainant incurred an expenditure of more than 3,00,000/- for her treatment.
6. While the complainant was bedridden on December 2013 one of her relatives approached Adv.Muhammed Rafi of Chengannur and entrusted him to sent legal notices to 1st and 3rd opposite parties and thereafter to file a complaint before the District Consumer Disputes Redressel Forum, Alappuzha. The advocate then visited the complainant at her house and made her to sign many papers including vakalath for filing the complaint and received more than Rs.25,000/- towards the fees and expenditure. The advocate made her to believe that legal notices were sent to the 1st opposite party and as she did not respond for the same complaint was filed against the opposite parties No.1 to 4 within the time prescribed by law and showed the purported draft of the legal notice as well as the complaint. Complainant waited for about 3 years for appearing before the Forum and the advocate informed that the case was adjourned. Complainant was undergoing continuous treatment and she was not in a position to travel to Alappuzha. The advocate purposefully cheated the complainant under the influence of the opposite parties. On enquiry with the Forum it is revealed that no such complaint was filed. Hence they had occurred a delay in filing the complaint.
7. The cause of action of this complaint had arisen on 03.01.2013 when the complainant underwent surgery conducted by the 1st opposite party and thereafter she was continuously treated by the 3rd opposite party. The delay in filing the complaint was not due to any fault or willful negligence of the complainant but it is only due to the cheating done by the advocate. Due to the unfortunate incidents she lost her job at Gulf countries for ever. It is the medical negligence of the 1st opposite party complainant was bedridden for more than one year. 1st and 3rd opposite parties are equally liable for worsening the physical condition of the complainant as both of them committed medical negligence as well as deficiency of service. 2nd and 4th opposite parties being the employers are also liable. Complainant is entitled to get a compensation of Rs.20,00,000/- from the opposite parties. Hence opposite party may be directed to pay an amount of Rs.20 lakhs as compensation.
8. Opposite parties No.1 and 2 filed a version mainly contenting as follows:-
The complaint is frivolous, vexatious and devoid of truth or bona fides. There is no negligence or deficiency in service on the part of these opposite parties. The 1st opposite party had conducted abdominal hysterectomy on 03.01.2013 and the complainant alleges that she developed vesico vaginal fistula due to negligence and hence the cause of action is barred by limitation in the year 2015. Thus the complaint filed in the year 2018 is not sustainable on the ground that it is barred by limitation. The explanation that she was cheated by a lawyer is not sufficient.
9. The complainant came to see the 1st opposite party for the 1st time on 21.12.2012 as per the advice of Dr.Renu with complaint of mass coming out per vaginum. After examination she was found to have an infra vaginal elongation of the cervix with the cervix lying outside the vulva and no cystocele or rectocele. It was explained to the patient and after counseling she was asked to get admitted for medical consultation and hysterectomy. After necessary pre-operative investigations the case was posted for vaginal hysterectomy on 03.01.2013. The pros and cons of hysterectomy and the risk and complications were explained to her and her bystanders. Surgery was started as vaginal hysterectomy under general anesthesia. As the initial dissection proceeded, it was noted that the bladder was densely adherent to the atrophic uterus patient being post menopausal. While releasing adhesions with care bladder injury was suspected and it was decided to repair the rent and continue the hysterectomy through the abdominal route. Since the urologist was not there not in station the surgeon was called for assistance and for bladder injury repair. The rent was repaired by the surgeon after completing the hysterectomy. Intactness of repair was verified and checked by injecting methylene blue by the surgeon and abdomen was closed. Since urinary leak through vagina was noticed post operatively the opinion of Dr.Nebu consultant urologist from nearby medical college hospital was sought and he advised to continue conservative management with continuous bladder drainage and repair at a later stage if leak persisted. The incidence of bladder injury caused due to the presence of thick adhesions, intra operative repair and leakage were discussed with bystanders and conservative management as per advice of the urologist continued. In spite of continuous bladder drainage, the patient had persistence of urine leakage even on the 6th post operative day and in discussion with bystanders the patient was referred to senior urologist at Thiruvalla medical mission hospital.
10. Complainant had expectant management with continuous bladder drainage for 2-3 weeks. As it did not settle surgical repair of vesico vaginal fistula was advised at 3 months to allow for surgical inflammatory reaction to subside. VVF repair was done after 3 months and it was successful. She was discharged without leak and advised to control blood sugar. When the complainant reported to the 2nd opposite party hospital for physician’s consultation for diabetic management on 04.06.13 se did not have urinary leakage but with high blood sugar. The 1st opposite party had exercised due skill, expertise and care in the treatment of the complainant and there was no negligence or deficiency in service on her part. The incidence of bladder involvement during vaginal hysterectomy due to the presence of thick adhesions and occurrence of vesico vaginal fistula is an accepted and reported complication. The bladder injury was detected intra operatively and bladder repair was done and followed up as per standard treatment protocol and reference to higher centre was made for management of persistence of leakage. The allegation that VVF occurred due to negligence of the 1st opposite party is ill motivated and hence denied.
11. The allegation that injury was caused to urinary bladder due to negligence of the 1st opposite party is not tenable or sustainable. The occurrence of urinary bladder injury due to presence of thick adhesions and its repair done by ht surgeon were explained to the complainant and her bystanders and as per advice of urologist she was managed conservatively with continuous bladder drainage.
12. The complainant has cooked up a concocted story for the purpose of explaining the delay in filing the complaint which is not acceptable to logic and reason. The complainant’s case of cheating by Adv.Muhammed Rafi is not sufficient ground to condone the delay since she was neither vigilant nor exercised reasonable care in seeing that the case is being prosecuted. The complainant’s cause of action is barred by limitation. The averment that the complainant’s physical condition worsened due to medical negligence and deficiency in service is ill motivated. The complaint is filed by misrepresenting facts with a view to extract money from these opposite parties. Hence the complaint may be dismissed with cost of these opposite parties.
13. 3rd and 4th opposite parties filed a version mainly contenting as follows:-
The complaint is frivolous, vexatious and devoid of truth or bonafides. There is no negligence or deficiency in service on the part of the 3rd opposite party as alleged. It is true that the patient was brought to opposite party No.4 hospital on 09.01.2013 in a most dangerous and serious condition after the treatment in the previous hospital. The averment that due to the careless and irresponsible attitude there was no improvement after treatment for about 5 months is false. Complainant did not obey the medical instructions of the opposite parties. He condition was with vasico vaginal fistula and what was possible was only repair of the alleged previous damages done on the patient. She was discharged from 4th opposite party with no leakage of urine which was her previous disease and condition.
14. The admission of the patient to 4th opposite party’s hospital was allowed only on medical ethics and follow up possible was done. The averment that 3rd opposite party failed to cure the vesico vaginal fistula and to repair the ruptured urinary bladder to stop the leakage of urine and the irresponsible treatment and improper medication worsened the physical condition is false. The averment in the complaint are that the advocate purposefully cheated the complainant under the influence of the opposite parties are false. The complaint is hopelessly barred by limitation. Opposite parties No.4 is having insurance and they are a necessary party. Hence it is prayed that the complainant against these opposite parties may be dismissed with cost.
15. On the above pleadings following points were raised for consideration :-
- Whether there was negligence on the part of 1st opposite party and 3rd opposite party as alleged by the complainant?
- Whether the complaint is hit by limitation?
- Whether the complainant is entitled to receive Rs.20,000/- towards compensation for the mental as well as physical agony and financial loss from opposite parties?
- Whether the complainant is entitled to realize the treatment expenses incurred by her?
- Reliefs and costs?
16. Evidence in this case consists of the oral evidence of PW1 and PW4 and Exts.A1 to A15 from the side of the complainant and the oral evidence of RW1 to RW4 and Ext.B1 series, B2 series and B3 series from the side of opposite parties.
17. Point Nos. 2 to 4
For the sake of convenience these points are considered together. PW1 is the complainant in this case. She filed an affidavit in tune with the complaint and marked Ext.A1 to A12.
18. PW2 was working as associate consultant in urology at PVS hospital, Ernakulam. On 13.08.18 he treated the complainant and issued a certificate and marked Ext.A13. On 08.01.18 he issued a discharge summary and it is marked Ext.A14. She was having vesico vaginal fistula. During 2013 she had undergone uterus removal surgery. The leak started after the surgery. It happened due to the complication occurred at the time of surgery. Some injury was caused to the urinary bladder. There is higher chance of recurring if suturing is done by a gynecologist may not be perfect as done by a surgeon. There is no other reason for PW1 for the leak other than fistula.
19. PW3 is working as professor at urology department in MCH Alappuzha. On 28.08.13 he had admitted PW1 Adabia and discharge on 03.09.13. Ext.X1 is the attested copy of original case sheet. Ext.A6 was issued by him in Ext.A6 the date (29.08.13) is not in handwriting. During complicated surgeries there is a chance of fistula. In this case the operation was difficult patient was diabetic and she had 3 deliveries that may be the reason for fistula. During elective surgery also urinary bladder injury may occur. Fistula can be cured up to 90-95 person by another surgery.
20. PW4 stated that she is familiar with PW1. After returning from gulf PW1 had undergone treatment at 2nd opposite party hospital for gynec complaints. On 03.01.13 she had undergone surgery and discharged on 01.09.13. Thereafter with a letter she took treatment at 4th opposite party hospital. There was leakage of urine. Thereafter she had undergone treatment at MCH, Vandanam. From there it was revealed that there was a hole in the urinary bladder. As per the direction of Dr.Nazar she was taken to PVS hospital Ernakula. Though the doctor has to PVS hospital advised surgery due to financial difficulties it was not done. She had undergone further treatment at MCH Alappuzha. She had also undergone treatment of a doctor attached to Amritha hospital. They advised surgery for which lot of money is required.
21. RW1 is the 1st opposite party. She filed an affidavit in tune with the version and marked Ext.B1 series and B2 series.
22. RW2 is working as physician and diabetologist attached to M/s Sanjivani multi speciality hospital from 2010 onwards. PW1 Adabia is taking treatment from there. She was having sugar insulin and tablets were given. She was also taking medicines for hypertension. On 20-05-13 he had treated PW1 for sugar control. She had 180 as fasting sugar and 293 as PPBS. On 04.06.13 also sugar was not under control. It was found that she was not taking proper medicines as advance.
23. RW3 is a surgeon by profession and was working as M/s Sanjivani hospital from 2010 to 2018. On 03.01.13 he was on O.P duty. As per the request of RW1 he went to the operation theatre and RW1 conducted abdominal hysterectomy at his presence. He had proceeded with the bladder repair. There was no leakage and the abdomen was closed by the gynecologist.
24. RW4 is the 3rd opposite party in this case. He filed an affidavit in tune with the version and marked Ext.B3 series and B4 series.
