IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 24th day of April, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.109/2010 (Filed on 31.07.2010)
Between:
Mariamma Abraham @ Mariamma-
Daniel, Pulimoottil Peedikayil,
Viyapuram Village, Karichal Muri,
Payippadu, Alappuzha, presetly
At Kolekulangara Vilayil,
Pallickal P.O., Kattanam,
Alappuzha District.
(By Adv. Joseph. K.) … Complainant.
And:
1. Dr. L. Jayachandran,
Chitra Multi Speciality Hospital,
Pandalam, Pin – 689 501.
(By Adv. P.K. Mathew)
2. Chitra Multi Speciality Hospital,
Pandalam represented by its
Proprietor, Dr. L Jayachandran.
(By Adv. Preetha. John. K.) … Opposite parties.
O R D E R
Sri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The complainant’s case is that 1st opposite party is the Proprietor of the 2nd opposite party hospital and the 1st opposite party is the consulting doctor of the complainant. On 15.08.2004, the complainant had undergone a total abdomen hysterectomy and it was performed by the 1st opposite party. While so during 2009, the complainant developed gynecological problems for which she consulted the 1st opposite party. As per the advice of the 1st opposite party, scanning was taken. After examining the scanning report, the 1st opposite party informed the complainant that she is suffering from left ovarian cyst and further opined that the complainant’s right ovary was normal and healthy.
3. As advised by the 1st opposite party, the complainant underwent the surgery on 07.08.2009 at the 2nd opposite party hospital and the surgery was performed by the 1st opposite party. During the surgery, the 1st opposite party negligently removed the right ovary of the complainant instead of removing the left ovary. After the surgery, the complainant’s husband met the 1st opposite party to discuss the post operative issues. At that time, complainant’s husband specifically asked 1st opposite party as to whether the left ovary was removed. But the 1st opposite party evaded from answering the said question and informed that the right ovary was removed to prevent any problems that may arise in future. Despite the above surgery, the complainant continued to have gynecological problems. So she consulted Dr. P. Sobhana at Life Line Super Specialty Hospital, Adoor. As per the advice of the said doctor, scanning was done and the said scanning report revealed that her right ovary was removed and that her left ovary is left intact. On the basis of the said scanning report, the complainant undergone surgery for the removal of the left ovary on 01.02.2010 at Life Line Super Specialty Hospital, Adoor during which the left ovary was surgically removed. According to the complainant, the 1st opposite party negligently removed the complainant’s healthy right ovary instead of removing the left ovary which resulted in a 2nd surgery for removing the left ovary. The above said act of the opposite party is a clear deficiency in service and negligence. For the both surgeries, the complainant had spent `70,000. Because of the above said acts of the opposite party, the complainant had sustained financial loss and mental agony and the opposite parties are liable to the complainant for the same. Hence this complaint for the realization of a total amount of Rs.5,70,000 with 12% interest under various heads from the opposite parties.
4. Both opposite parties entered appearance and filed separate versions. The main contention of the first opposite party is as follows: The first opposite party admitted the treatment of the complainant by him at the second opposite party hospital. According to the first opposite party, the complainant consulted him in the Gynaecology O.P. in the second opposite party hospital on 21.07.2009 with complaints of pain in lower abdomen. She had a history of Hysterectomy in the year 2004. She was also a diabetic patient on insulin for 15 years. Based on the clinical symptoms, she was diagnosed to have ovarian cyst and an ultra sound scan was suggested. The scanning report dated 22.07.2009 suggests a cystic area with peripheral internal septation, mass, approximate 124mm, 76mm, 87.8mm seen in the pelvis slightly towards the left side, both ovaries could not be imaged. The impression noted as per the scan report was ovarian cyst.
5. Based on the scan report, the first opposite party suggested exploratory laprotomy and after complying all formalities, he had conducted the surgery on 07.08.2009. Under all aseptic care and precautions, first opposite party conducted laprotomy and intra operatively, there were thick adhesions and fluid collection was found between the urinary bladder, sigmoid colon laterally, posterior and medial to small intestine. About 300 cc fluid was removed and adhesions were released. Left side ovary could not be visualized. Right side ovary was found affected with cyst and it was removed and sent for histopathology. Post operative period was uneventful and she was discharged on 12.08.2009 with an advice for review after 15 days. Suture healed well and she had no complaints. The histopathology report revealed Para ovarian serous cyst of paramesonephric origin. As evident from the histopathology report, the right ovary was having serous cyst of paramesonephric origin and it was removed for that specific reason together with a view to avoid chance of future malignancy. The first opposite party never told the complainant that she was suffering from left side ovarian cyst as alleged since the scan report dated 22.07.2009 noted the impression ‘ovarian cyst’ without specifying which ovary was affected. Hence there was no misrepresentation or wrong diagnosis on the part of the first opposite party. The first opposite party had exercised all reasonable degree of skill and care in diagnosis and treatment and there was no negligence or deficiency in service on his part. It is false to say that after investigation, the opposite party informed the complainant that she was suffering from left ovarian cyst and as such her left ovary had to be surgically removed.
6. The allegation that the first opposite party negligently removed the right ovary instead of left ovary is false and such an allegation is made with an ulterior motive. The right ovary was not removed for the specific manifestation of having cyst. The contract for service as per the provisions of Consumer Protection Act had been fulfilled in this case by the first opposite party with due spirit of dedication and sincerity. After the operation, the first opposite party informed the complainant and her husband about the operative findings and the fact of the removal of the right ovary for cyst. The statement that the first opposite party evaded from answering the specific questions of the complainant is also false. It is also informed the complainant that the left ovary could not be visualized intra operatively and hence not removed. The surgery for the removal of left ovary is done on 01.02.2010 and not immediate to the surgery done by the first opposite party. Hence the allegation that the gynaecological complaints of the complainant continued despite the surgery conducted by the first opposite party is false. The post operative recovery of the complainant was perfect and she got relieved of her earlier symptoms. If pain in lower abdomen for which the complainant consulted the first opposite party on 21.07.2009 was persisting even after laparotomy she would not have waited for such a long period to have medical consultation. It is clear from the facts and evidence that the complainant has cooked up facts for undue financial advantage without any bonafides. The first opposite party has not committed any negligence or deficiency of service in the treatment of the complainant. The complainant is not entitled to get any of the reliefs as the complainant had no sufferings from the part of the first opposite party. First opposite party is a qualified and experienced doctor and he is only an employee of the second opposite party and the first opposite party is not liable to the complainant as he had not committed any deficiency or negligence and even if this Forum found anything against the first opposite party, the second opposite party being employer of the first opposite party is liable to compensate the complainant. With the above contentions, the first opposite party prays for the dismissal of the complaint with his cost.
7. Since the version submitted by the second opposite party is more or less the same as that of the first opposite party. The main contention raised by this opposite party is the same contentions raised by the first opposite party. So we are not repeating the contentions of the second opposite party separately for the sake of convenience. The second opposite party also prays for the dismissal of the complaint with their cost based on their version as they have not committed any deficiency of service or negligence in the treatment of the complainant.
8. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
9. The evidence in this case consists of the oral deposition of PW1, PW2 and DW1 and Exts. A1 to A12 series and B1 series. After closure of evidence, both sides filed their arguments notes and they were heard.
10. The Point: The complainant’s allegation is that on 15.08.2004, the first opposite party had done a total abdomen hysterectomy for her gynaecological problems at the second opposite party hospital. Thereafter in August 2009, she had developed gynaecological problems again for which she consulted the first opposite party and the complainant was advised for scanning as part of medical investigation. After the investigation, the first opposite party informed the complainant that she is suffering from left ovarian cyst and as such the left ovary has to be surgically removed. The first opposite party also opined that the complainant’s right ovary was normal and healthy. As advised by the first opposite party, the complainant underwent surgery at the second opposite party hospital on 07.08.2009 and the surgery was performed by the first opposite party. After the surgery, the complainant’s husband met the first opposite party to discuss about the post operative issues. In the course of the discussion, the complainant’s husband specifically asked the first opposite party as to whether the left ovary was removed. But he evaded from answering the said question and informed that the complainant’s right ovary was removed to prevent any problems that may arise in future. As per the advice given at the time of discharge, the complainant met the first opposite party for review after 15 days. At that time, the complainant was advised by the first opposite party to resume her job. Despite the above said surgery, the complainant continues gynaecological problems. So she consulted Dr. P. Sobhana at Lifeline Super Specialty Hospital, Adoor. As per the advice of Dr. P. Sobhana, the complainant had undergone further scanning. The scanning report revealed that her right ovary was removed and her left ovary was still intact. The said report revealed that the complainant had cyst over her left ovary. In the circumstances, the complainant was advised for undergoing surgery for the removal of the left ovary. Accordingly, on 01.01.2010, the complainant’s left ovary was surgically removed at Lifeline Super Specialty Hospital. According to the complainant, the first opposite party negligently removed the complainant’s healthy right ovary instead of removing the left ovary which required surgically removal. The above said act of the first opposite party is a gross deficiency of service. Because of the said acts of the first opposite party, the complainant was compelled to spend ` 70,000 in total for both the surgeries. Further she had sustained mental agony and other discomforts and inconveniences due to the negligence of the first opposite party. So the first opposite party is liable to the complainant for the same.
11. In order to prove the case of the complainant, complainant filed a proof affidavit along with 9 documents. On the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced were marked as Exts. A1 to A9 series. In addition to Exts. A1 to A9 series, 2 documents in Ext. B1 series case sheet was also marked as Exts. A10 and A11 through PW1. Apart from the complainant, Dr. P. Sobhana who had performed the second surgery is also examined as PW2 for the complainant and the case sheet of the complainant at Lifeline Hospital is marked as Ext. A12 series through PW2. Ext. A1 is the discharge card dated 20.08.2004 issued from the second opposite party hospital in respect of the total abdominal hysterectomy done to the complainant on 15.08.2004. Ext. A2 is the discharge summary dated 12.08.2009 issued from the second opposite party hospital in respect of the treatment of the complainant from 06.08.2009 to 12.08.2009. Ext. A3 is the discharge summary dated 08.02.2010 issued from Lifeline Hospital, Adoor in respect of the surgery and treatment of the complainant from 01.02.2010 to 08.02.2010. Ext. A4 is the certificate dated 20.08.2004 issued by the first opposite party in respect of the surgery of the complainant on 15.08.2004. Ext. A5 is the histopathological report dated 10.09.2004 issued from Diagnostics and Research Centre, Ernakulam. Ext. A6 is the USG report dated 30.11.2009 issued from Lifeline Hospital, Adoor in the name of the complainant. Ext. A7 is the CT scan report dated 07.12.2009 issued from Travancore MRI Scan and Laboratory, Pathanamthitta in respect of the scanning of the complainant. Ext. A8 is the biopsy/cytology report dated 16.02.2010 issued from DDRC-Piramal Diagnostic Services, Ernakulam in the name of the complainant. Ext. A9 series are the medical bills issued from opposite party hospital and Lifeline Hospital, Adoor. Ext. A10 and A11 are the sheet No.14 in Ext. B1 case sheet (operation record) in respect of the treatment of the complainant at second opposite party hospital. Ext. A12 is the treatment record in respect of the complainant at Lifeline Hospital, Adoor. Ext. A12(a) is the discharge summary dated 08.02.2010 kept in Ext. A12 in respect of the treatment of the complainant at Lifeline Hospital. Ext. A12(b) is the outpatient record kept in Ext. A12 in respect of the treatment of the complainant at Lifeline Hospital, Adoor. Ext. A12 series are marked through PW2 for the complainant.
12. On the other hand, the opposite parties’ contention is that they have not committed any deficiency in the treatment of the complainant and the treatments provided by them are as per medical ethics and principles. The said treatments are also warranted in the circumstances of the complainant’s ailments.
13. In order to prove the contentions of the first opposite party, the first opposite party filed a proof affidavit in lieu of his chief examination. On the basis of the proof affidavit, the first opposite party was examined as DW1. The treatment record in respect of the complainant at the second opposite party hospital is marked as Ext. B1 series through PW1 for the opposite parties. Ext. B1 is the treatment record in respect of the treatment of the complainant at second opposite party hospital. Ext. B1(a) is the informed consent given by the complainant for her surgery to the second opposite party hospital. Ext. B1(b) is the Ultra Sound Scanning Report dated 22.07.2009 in respect of the complainant’s abdomen kept in Ext. B1 case sheet.
14. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that there is no dispute with regard to the treatment of the complainant by the first opposite party at the second opposite party hospital and the treatment by PW2 at Lifeline Hospital, Adoor. According to the complainant, during her treatment at the second opposite party hospital, the first opposite party negligently removed her right ovary instead of her left ovary which is having complications found in the scanning conducted at the second opposite party hospital. But according to the first opposite party, as per the scanning report, both ovaries could not image and the impression noted as per scan report was suspected ovarian cyst. Based on the scan report, an exploratory laprotomy was conducted on 07.08.2009 after explaining the situations fully to the complainant and to the relatives and after obtaining informed consent. In the surgery, the complainant’s left side ovary could not be visualized and the adhesions and the fluid collections found were removed and the right side ovary was found affected with cyst and it was removed for avoiding future complications. The procedures done in the complainant is warranted and thus there is no negligence or deficiency in service from the side of the opposite parties.
15. In the light of the rival contentions of the parties, we have perused Exts. A10 and B1(b) and found that the scanning report and pre-operation diagnosis does not discloses any clear cut evidence for the ailments on the ovaries of the complainant. As per Ext. B1(b) report, both ovaries of the complainant could not be imaged. At the same time, the conclusion in Ext. B1(b) and Ext. A10 pre-operation diagnosis, there is suspected cyst over the left ovary. It is also noticed from Ext. B1(b) and Ext. A10 that there is no mention regarding any ailments to the complainant’s right ovary. As per Exts. A2 and A11, the first opposite party immediately conducted an exploratory laprotomy and removed the fluid and adhesions found and removed the right ovary in order to avoid future complications. From this, it is very clear that the first opposite party conducted the exploratory laprotomy without a proper diagnosis and without a proper investigation. Since both ovaries of the complainant is not imaged in Ext. B1(b) scanning report, what prevented the first opposite party from conducting a proper investigation to the actual ailments of the complainant and what prompted him to conduct an immediate surgery without waiting for a further investigation?. According to the first opposite party, during the exploratory laprotomy he had removed the fluid and thick adhesions. Even then he had not seen the left ovary of the complainant. If that be so, why should he conducted the exploratory surgery?. The next question is why he had removed the right ovary of the complainant?. According to the first opposite party, the right ovary was found affected with cyst and hence he removed the same for avoiding future complications. But he failed to prove the presence of cyst over the right ovary with cogent evidence. In view of the non-mentioning of any complications to the right ovary of the complainant in Exts. A10 and B1(b), the first opposite party cannot be justified for the removal of the right ovary of the complainant.
16. As per Ext. A12(a) the discharge summary issued from Lifeline Hospital, the complainant’s left ovary was removed for affecting cyst over it. It is also revealed from Exts. A2, A6 and A11 that the complainant’s right ovary was removed. As per Ext. A2 discharge summary and Ext. A10 operation records, the diagnosis is suspected cyst over the left ovary. But the treatments resulted in the removal of the right ovary and the first opposite party has not adduced any evidence for justifying the removal of the right ovary. Moreover, the complainant’s condition was not so bad so as to take an immediate decision without waiting for further investigation.
17. In view of the above discussions and observations, we are of the view that the first opposite party has committed negligence in the treatment of the complainant by removing the right ovary instead of the left ovary without proper investigations and diagnosis. It is a clear deficiency of service from the part of the first opposite party which contributed much mental agony and financial loss to the complainant. Therefore, the first opposite party is liable to the complainant for the same. However, the first opposite party is an employee of the second opposite party; the second opposite party is vicariously liable to the complainant. Since the complainant had failed to adduce cogent evidence for substantiating the quantum of the claim for compensation prayed for in the complaint, we are not inclined to allow the prayer for compensation as prayed for in the complaint. Therefore, this complaint is allowable in part.
18. In the result, this complaint is allowed in part, thereby the second opposite party is directed to pay an amount of `1,00,000 (Rupees One lakh only) as compensation and ` 25,950 (Rupees Twenty five thousand nine hundred and fifty only), the amount paid by the complainant for the treatment at the second opposite party hospital, along with cost of Rs. 5,000 (Rupees Five thousand only) within 30 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount with 10% interest per annum from today till the realization of the whole amount.
Dictated to the Confidential Assistant, transcribed and typed by him, corrected by me and pronounced in the Open Forum on this the 24th day of April, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Mariamma Abraham.
PW2 : Dr. P. Sobhana.
Exhibits marked on the side of the complainant:
A1 : Discharge card dated 20.08.2004 issued from the second
opposite party hospital.
A2 : Discharge summary dated 12.08.2009 issued from the
second opposite party hospital in respect of the treatment
of the complainant.
A3 : Discharge summary dated 08.02.2010 issued from Lineline
Hospital, Adoor in respect of the surgery and treatment of
the complainant.
A4 : Certificate dated 20.08.2004 issued by the first opposite
party in the name of the complainant.
A5 : Histopathological report dated 10.09.2004 issued from
Diagnostics and Research Centre, Ernakulam.
A6 : USG report dated 30.11.2009 issued from Lifeline Hospital,
Adoor in the name of the complainant.
A7 : CT scan report dated 07.12.2009 issued from Travancore
MRI Scan and Laboratory, Pathanamthitta.
A8 : Biopsy/cytology report dated 16.02.2010 issued from
DDRC-Piramal Diagnostic Services, Ernakulam in the
name of the complainant.
A9 series : Medical bills issued from the second opposite party
hospital and Lifeline Hospital, Adoor.
A10& A11:Sheet No.14 in Ext. B1 case sheet (operation record) in
respect of the treatment of the complainant at second
opposite party hospital.
A12 : Treatment record in respect of the complainant at Lifeline
Hospital, Adoor.
A12(a): Discharge summary dated 08.02.2010 kept in Ext. A12 in
respect of the treatment of the complainant at Lifeline
Hospital.
A12(b): Outpatient record kept in Ext. A12 in respect of the
treatment of the complainant at Lifeline Hospital, Adoor.
Witness examined on the side of the opposite parties:
DW1 : Dr. L. Jayachandran.
Exhibits marked on the side of the opposite parties:
B1 : Treatment record in respect of the treatment of the
complainant at second opposite party hospital.
B1(a) : Consent given by the complainant for surgery.
B1(b): Ultra Sound scanning report dated 22.07.2009 in respect
of the complainant’s abdomen kept in Ext. B1 case sheet.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Mariamma Abraham @ Mariamma Daniel,
Kolekulangara Vilayil, Pallickal P.O., Kattanam,
Alappuzha District.
(2) Dr. L. Jayachandran, Chitra Multi Speciality Hospital,
Pandalam, Pin – 689 501.
(3) The Stock File.
