BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri. T.Sundara Ramaiah, B.Com B.L., President
And
Sri. M.Krishna Reddy, M.Sc., M.Phil., Male Member
And
Smt. S.Nazeerunnisa, B.A., B.L., Lady Member
Tuesday the 2nd day of August, 2011
C.C.No.36/2010
Between:
K.Lakshmidevamma, W/o K.Venkaiah,
R/o H.No.42-183/1, Vengal Rao Nagar, Wanaparthi, Mahaboobnagar District.
…Complainant
-Vs-
1. Dr. K.Raja Sekhar, Proprietor, C.N. Hospitals,
Birla Compound, B-Camp, Anantapur Road, KURNOOL-518 002.
2. Indian Medical Association, A.P. State Branch, Represented by its Secretary,
I.M.A. Building, 2nd floor, Esamia Bazar, HYDERABAD – 500 027. …Opposite ParTIES
(Amended as per order in I.A.No.20/11, dated 02-02-2011).
This complaint is coming on this day for orders in the presence of Sri A.Rama Subba Reddy, Advocate for complainant and Syed Shafaqath Hussain, Advocate for opposite party No.1 and Sri M.Sivaji Rao, Advocate for opposite party No.2 for upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. T.Sundara Ramaiah, President)
C.C. No. 36/2010
1. This complaint is filed under section 12 of C. P. Act, 1986 praying to direct the opposite parties:-
- To pay damages or compensation of Rs.15,63,444/- to the complainant;
(b) To grant interest @ 24% per annum from 14-05-2009;
(c) To grant costs of the petition.
2. The case of the complainant in brief is as under:- On 13-05-2009 the complainant approached the first opposite party for vault prolapse treatment. The first opposite party performed surgery on the complainant on 14-05-2009. The complainant took treatment in the nursing home of the complainant as inpatient till 28-05-2009. On 26-05-2009 it was found that stool was coming from vagina of the complainant. The first opposite party was informed about it. Opposite party No.1 stated that it would not be a problem and it would be rectified automatically. The complainant paid Rs.31,119 - 65 ps to the opposite party towards his fee and nursing home charges. The complainant also spent an amount of Rs.19,000/- for attendant’s expenditure, diet and other expenditure. Unable to bear the problem of stool coming from vagina the complainant approached Sai Vani Hospital Limited, Hyderabad on 30-05-2009. After examination Dr.Sarada Vani of said hospital informed that there was defect in performing surgery for repairing vault prolapse and because of the defect the problem of passing stool through vagina was developed. The opposite party was negligent in performing the surgery. The first opposite party did not take reasonable care while performing surgery. The first opposite party is liable to reimburse the loss incurred by the complainant.
The complainant was operated on 03-06-2009 for recto vaginal problem in Sai Vani Hospital Limited Hyderabad. She was discharged on 09-06-2009. An amount of Rs.88,717 – 75 ps was paid by the complainant to Sai Vani Hospital Limited. The complainant also spent an amount of Rs.30,000/- towards attendant’s expenditure at Hyderabad. She also spent Rs.36,000/- for post operative treatment after discharge from Sai Vani Hospital Limited, Hyderabad. The doctors at Hyderabad opined that the complainant had to under go two or four surgeries and assessed the required expenditure at Rs.7,00,000/-. The complainant also suffered mentally and she is also entitled to compensation of Rs.5,00,000/- for mental agony. She requires Rs.3,00,000/- for loss of her services and Rs.1,00,000/- towards attendant’s requirements in future. On 02-06-2009 when the husband of the complainant questioned the opposite party about his negligence, the opposite party admitted his fault and defective service and paid Rs.2,00,000/-. The Government of Andhra Pradesh reimbursed medical expenditure of Rs.41,392/-. The opposite party rendered service with deficiency. He was negligent in performing the surgery on the complainant. The opposite party is liable to reimburse the total loss incurred by the complainant. Hence the complaint.
3. Opposite party No.1 filed written version stating that the complaint is not maintainable. The complainant was admitted in C.N. Hospital of opposite party No.1 on 13-05-2009 with the problem of vault prolapse. She was operated for the said problem on 14-05-2009. Her omentuem and bowel were densely adherent to the vault. During releasing of adhesions accidental there was injury to the bladder. Immediately it was repaired by opposite party No.1 under the supervision of Dr.Seetharam (Urologists). The surgery went on well and her Post operative General Condition was good. From 20-05-2009 the complainant was allowed oral intake. Her bowel sounds were good and she did not complain about any abnormality in passing stools. As her condition was good she was discharged on the night of 27-05-2009. As she had to go to her native place Wanaparthy she stayed in the Hospital till morning of 28-05-209. There was no negligence on the part of opposite party No.1 while performing the surgery or during the post operative period. Only on 29-05-2009 the husband of the complainant contacted opposite party No.1 on phone and complained for the first time that the complainant was passing stool through vagina. This opposite party No.1 instructed him to get the complainant immediately to the hospital for examination and treatment if necessary. But they did not turn up to opposite party No.1. On 02-06-2009 the husband of the complainant came to opposite party No.1 and informed that the complainant was taken to Hyderabad for further treatment and requested the opposite party No.1 to help them financially as they were not in a position to bear the medical expenses at Hyderabad. On humanitarian grounds the first opposite party with an intention to help them paid a sum of Rs.2,00,000/-. Out of which Rs.50,000/- was paid in cash and Rs.1,50,000/- by way of cheque. Opposite party No.1 asked the husband of the complainant to give him in writing reasons and circumstances under which the amount was paid to him. Accordingly he executed a document dated 02-06-2009 in his own hand explaining the reasons for which the amount was paid to him.
Opposite party No.1 is a MD in Obstetrics and Gynecology. He worked as a Medical Officer and Assistant Professor of Gynecology in Kurnool Medical College from 1987 to 2004. During the said period he got best Doctor award for two times for conducting nearly 40,000 Sterilization Operations in the District. He got certificate of commendation from Government of Andhra Pradesh for his outstanding works during the year 1998 -1999. He is a most experienced Gynecologist in Andhra Pradesh with more than 25 years of experience. No negligence or failure of operation is complained against the complainant at any time. The complainant filed the present complaint under an assumption that she got problem an account of negligence of opposite party No.1 while performing the operation. The problem of passing of stool through vagina might be due to so many reasons unconnected to the surgery she had under gone. Therefore the alleged problem of the complainant cannot be attributed to any negligence on the part of the opposite party No.1. There was no negligence on the part of opposite party No.1 in performing the operation in C.N. Hospital Kurnool. The claim of the complainant is exorbitant. Opposite party No.1 is not liable to pay compensation to the complainant as claimed. The opposite party is covered by Professional Protection and Welfare Scheme of the Indian Medical Association, Andhra Pradesh, state Branch. The compensation if any shall be paid by the said association. The said Indian Association is a proper and necessary party. The complaint is liable to be dismissed.
Opposite party No.2 filed written version stating that the opposite party No.1 is not insured with opposite party No.2. The Indian Medical Association is a separate body which is no way concerned with the Professional Protection and Welfare Scheme. Hence the complaint against opposite party No.2 is not maintainable.
4. On behalf of the complainant Ex.A1 to A17 are marked and sworn affidavit of the complainant is filed. On behalf of the opposite party No.1 Ex.B1 to B4 are marked and sworn affidavits of the opposite party No.1 and Dr. K.Seetaramaiah are filed. On behalf of the opposite party No.2 Ex.B5 is marked and sworn affidavit of Dr.P.Bala Maddaiah is filed.
5. Both sides filed written arguments.
6. The points that arise for consideration are:-
- Whether there is deficiency of service on the part of Opposite Parties?
- Whether the complainant is entitled for the reliefs as prayed for?
(c) To what relief?
7. POINTS 1 & 2:- Admittedly the complainant approached opposite party No.1 for treatment on 13-05-2009. The opposite party admitted the complainant in his Hospital by name C.N. Hospital on the same day. On 14-05-2009 the first opposite party performed surgery on the complainant for a problem of Vaginal Vault Prolapse. The complainant was there in the hospital of the first opposite party as impatient from 13-05-2009 to 27-05-2009. Ex.A1 discharge summery also reveals that the complainant was admitted in the hospital on 13-05-2009 and operation was conducted on 14-05-2009 for a problem of Vaginal Vault Prolapse. It is further admitted that the complainant paid Rs.31,119 – 65 Ps to opposite party No.1 towards his fee and nursing home charges. Admittedly after the discharge of the complainant from the hospital of opposite party No.1, the husband of the complainant met opposite party No.1 on 02-06-2009 and that opposite party No.1 paid a sum of Rs.2,00,000/- to the husband of the complainant.
8. It is the case of the complainant that the first opposite party performed the surgery for repairing Vault Prolapse carelessly and as a result the problem of passing stools through Vagina is developed. It is further case of the complainant that the opposite party did not take reasonable care while performing the surgery. The first opposite party denies negligence on his part while performing the surgery or during the post operative period. It is not the case of the complainant that opposite party No.1 is not qualified to conduct the surgery for Vaginal Vault Prolapse. No mention is made in the complaint that first opposite party is not qualified to conduct the operation for Vaginal Vault Prolapse. According to opposite party No.1 he is a MD in Obstetrics and Gynecology and worked as a Medical Officer and Assistant Professor of Gynecology in Kurnool Medical College from 1987 to 2004. In a complaint filed claiming compensation against a doctor alleging that the doctor was negligent in performing his duties the complainant has to establish medical negligence on the part of the doctor. It is submitted by the learned counsel appearing for opposite party No.1 that no expert is examined by the complainant to establish medical negligence on the part of opposite party No.1 and that complaint is liable to be dismissed. In support of his contention he relied on a decision reported in II (2001) CPJ 505 where in the Honourable A.P. State Commission, Hyderabad observed that the complaint is liable to be dismissed unless the allegation of medical negligence is supported by expert evidence. A.P. State Commission came to the said conclusion following the decision of the Honourable Supreme Court reported in I (2009) CPJ 32 (SC) Martin F.D’Souza Versus Mohd.Isthak. It is argued by the learned counsel appearing for the complainant that in each and every case filed against a doctor claiming compensation on the ground that the doctor did not take proper care while discharging his duties, expert evidence is not required. For the said proposition the learned counsel appearing for the complainant relied on a decision reported in 2010 – JT- 4 - 630 (SC), where in the Honourable Apex Court held that it is not bound by the general direction given in paragraph 106 in D’Souza case and those directions must be confined to the particular facts of that case. ……………………………….. In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. In the light of the observation made by the Honourable Apex Court in 2010 – JT – 4 – 630 it is very clear that in all complaints filed against doctors alleging medical negligence it is not mandatory to produce expert evidence. Every case has to be judged on its facts. In each and every case medical expert’s evident is not required.
9. It is the case of the complainant that after discharge from the Hospital of the first opposite party, she joined in Sai Vani Hospital Limited Hyderabad on 13-05-2009, that Dr. Sarada Vani of the said hospital conducted surgery on her for Rectovaginal problem on 03-06-2009 and that the Dr.Sarada Vani informed her that the problem of passing stool through vagina was developed due to the defect in performing surgery for Vault Prolapse. Admittedly Dr.Sarada Vani of Sai Vani Hospital Limited, Hyderabad was not examined by the complainant to show that there was defect in performing surgery for Vault Prolapse by opposite party No.1. Admittedly the complainant filed an application in I.A.No.74/2010 to appoint advocate commissioner to examine Dr.Sarada Vani of Sai Vani Hospital Limited. The said application was allowed and a commissioner was appointed. After taking number of adjournments the commissioner returned the warrant stating that the petitioner who is the complainant was not showing interest to examine Dr.Sarada Vani. The complainant did not place any independent evidence on record to show that there was defect in performing the operation on complaint by opposite party No.1 on 14-05-2009. It is submitted by the learned counsel appearing for the complainant that at the time of the performing surgery by opposite party No.1 there was injury to the bladder and as a result stool was found coming from vagina. It is admitted by the opposite party that while performing the operation for Vaginal Vault Prolapse on the complainant there was accidental bladder injury and it was repaired immediately. Ex.A1 is the discharge summery where in it is mentioned that accidental bladder injury was caused while performing surgery on the complainant on 14-05-2009. It is submitted by the learned counsel appearing for opposite party No.1 that opening to bladder will not result in passing of stool from vagina. The bladder in the abdomen receives urine from the Kidneys and stores it for excertion. There is no mention in Ex.A1 that rectum of the complainant received injury while performing surgery by opposite party No.1. If the injury is to rectum there is possibility of stool passing out through vagina. The contention of the complainant that an account of the injury to her bladder stool came out from vagina cannot be believed. As already stated the complainant not produced expert evidence to know the reason of stool coming out from vagina of the complainant. Expect the self-serving statement of the complainant there is no expert evidence to show that the procedure adopted by opposite party No.1 while conducting operation was not correct. The opposite party No.1 nowhere admitted that there was defect in the surgery conducted by him on the complainant on 14-05-2009. It is the case of the complainant that she had under gone operation for recto vaginal problem in Sai Vani Hospital Limited, Hyderabad and that the Dr.Sarada Vani conducted the said operation. The complainant simply filed Ex.A6 discharge summery said to have been issued by Sai Vani Hospital Limited, Hyderabad. Mere filing of the discharge summer is not sufficient. No one connected to the said Sai Vani Hospital is examined to prove the contents of Ex.A6 to Ex.A16. There is also no satisfactory evidence on record to show that the complainant was having problem of stool coming out from vaginal after the opposite party No.1 performed surgery on her.
10. It is the case of the complainant that on 02-06-2009 when her husband met the opposite party and questioned his negligence the opposite party admitted his negligence and paid Rs.2,00,000/-. Admittedly the opposite party paid Rs.2,00,000/- to the husband of the complainant on 02-06-2009. The opposite party also filed Ex.B3 agreement executed by the husband of the complainant on 02-06-2009. The execution of the said document dated 02-06-2009 is not denyed by the complainant. The complainant has not chosen to file affidavit of her husband to establish that the opposite party No.1 admitted his negligence in performing operation on her on 14-05-2009. In Ex.B3 document executed by the husband of the complainant it is mentioned that at the time of discharge of the complainant from hospital of the opposite party No.1 on 28-05-2009 the complainant was not having any problem. It is mentioned in Ex.B3 that on the next day after their arrival to their house they found stool coming out from the vagina. EX.B3 document was scribed by the husband of the complainant. In Ex.A1 discharge summery of the complainant issued by C.N. Hospital, Kurnool it is mentioned that the condition of the complainant at the time of discharge is good. It is the contention of the complainant that the opposite party paid Rs.2,00,000/- as compensation as there was negligence on his part while performing the operation on the complainant. According to opposite party No.1 he paid said amount of Rs.2,00,000/- to the husband of the complainant on humanitarian grounds to help the complainant. In Ex.B3 there is no mention that the said amount was paid as a compensation for the negligence on the part of opposite party No.1 in performing the operation. No evidence is placed by the complainant on record to rebut the averments in Ex.B3 document executed by her husband. Merely because the opposite party paid Rs.2,00,000/- to the complainant it cannot be presumed that there was negligence on the part of the opposite party No.1 while conducting the operation on the complainant.
11. It is submitted by the learned counsel appearing for the opposite party that the problem of passing stool through vagina may be due to so many reasons and that the complications may arise in women who have under gone surgery for Vaginal Vault Prolapse. In Surgery Overview – Repair of vaginal wall prolapse (Vaginal Vault Prolapse) COPD … Page 1 of 2, it is mentioned that complications of surgery for vaginal vault prolapse are uncommon but include:
- …………………………………………………
- ………..……………………………………….
- ………………………………………………….
- …………………………………………………..
- …………………………………………………………………………………
- Formation of an abnormal opening or connection between organs or body parts (fistula).
In gynaeuk.com (Medical Information for Women) in page 2 of 3 it is mentioned that other complication is development of an abnormal passage between the rectum and vagina (recto-vaginal fistula). In the present case on hand admittedly the complainant under went surgery for Vaginal Vault Prolapse. An account of the said operation their might be a problem of passing of stool through vagina of the complainant. In shewes text book on Gynecology at page 279 it is mentioned that rare causes of recto vaginal fistula are tuberculosis, carcinoma of the vagina and carcinoma of the rectum. In the present case it is the case of the complainant that she under went operation for repair of recto vaginal fistula. Merely because the complainant was having problem of recto vaginal fistula after she under went operation for Vaginal Vault Prolapse on 14-05-2009, negligence cannot be attributed to opposite party No.1. As already stated the complainant could not place expert evidence to establish that there was negligence on the part of the opposite party No.1 in performing the surgery on the complainant for Vaginal Vault Prolapse. There is also no material on record to attribute negligence to the first opposite by applying the principle of res ipsa loquitur. No doubt the opposite party No.1 paid an amount of Rs.2,00,000/- to the complainant husband on 02-06-2009. Basing on the said payment presumption cannot be drawn that the first opposite party was negligent in performing the operation on the complainant. The complainant failed to produce satisfactory evidence to establish medical negligence on the part of first opposite party. In the light of the circumstances and facts of the case no inference can be drawn against the first opposite party that he was negligent in performing the operation on the complainant for Vaginal Vault Prolapse on 14-05-2009. No deficiency of service on the part of the first opposite party is established by the complainant. In the absence of expert medical evidence we are not inclined to hold that the first opposite party was careless in performing the operation on the complainant. Therefore we hold that the complainant is not entitled to the reliefs as claimed for.
12. In result, the complaint is dismissed without costs.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 2nd day of August, 2011.
Sd/- Sd/- Sd/-
MALE MEMBER PRESIDENT LADY MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opposite parties : Nill
List of exhibits marked for the complainant:-
Ex.A1 Photo copy of Discharge Summary Card issued by opposite
party dated 28-05-2009.
Ex.A2. Photo copy of Essentiality certificate issued by opposite
party dated 27-05-2009.
Ex.A3 Photo copy of Cash Receipt worth of Rs.18,050/- issued by opposite party.
Ex.A4 Photo copy of Cash Receipt worth of Rs.21,550/- issued by opposite party.
Ex.A5 Photo copy of |Medical Bills worth of Rs.9,178/- issued by
Sri Swathi Medicals, Kurnool.
Ex.A6 Photo copy of Discharge Summary card issued by Sai Vani
Hospitals Limited, Hyderabad dated 09-06-2009.
Ex.A7 Photo copy of Emergency Certificate issued by Sai Vani
Hospitals Limited, Hyderabad dated 30-05-2009.
Ex.A8 Photo copy of Essentiality Certificate issued by Sai Vani
Hospitals Limited, Hyderabad dated 18-06-2009.
Ex.A9 Photo copy of Detailed Bill settlement of Sai Vani Hospitals
Limited, Hyderabad of Rs.88,000/- dated 09-06-2009.
Ex.A10 Photo copy of Investigation details bill worth of Rs.6,150/-
dated 30-05-2009.
Ex.A11 Photo copy of O.T. Consumables bill worth of Rs.4,616/-
dated 04-06-2009.
Ex.A12 Photo copy of Pharmacy bills worth of Rs.7,953/-
dated 30-05-2009.
Ex.A13 Photo copy of Medical Bills worth of Rs.1,029/- of Sai Vani
Hospital Limited Hyderabad dated 31-05-2009.
Ex.A14 Medical Bills worth of Rs.1,420/- of Sai Vani Hospital
Limited, Hyderabad.
Ex.A15 A Bunch of Medical Bills (Nos.15) worth of Rs.7,550/-.
Ex.A16 Certificate issued by Sai Vani Hospital Hyderabad
Dated 16-12-2009.
Ex.A17 Photo copy of Director of Medical Education to
Commissioner sanction the admissible amount
reimbursement amount of Rs.41,392/- dated 23-10-2009.
List of exhibits marked for the opposite parties:-
Ex.B1 Case Sheet of the complainant of C.N. Hospital, Kurnool
dated 13-05-2009.
Ex.B2 Certificate of I.M.A. A.P. State Professional Protection and
Welfare Scheme issued in favour of the opposite party dated 27-09-2005.
Ex.B3 Agreement Executed by Husband of the complainant
dated 02-06-2009.
Ex.B4 Certificate of commendation issued by the District Collector, Kurnool dated 25-01-1999.
Ex.B5 Letter dated 29-03-2011 of Indian Medical Association
A.P. state Hyderabad.
Sd/- Sd/- Sd/-
MALE MEMBER PRESIDENT LADY MEMBER
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties :
Copy was made ready on :
Copy was dispatched on :
