As per Mr. Manohar Chilbule, President.
Present complaint is filed by the complainant U/s 12 of The Consumer Protection Act, 1986, claiming compensation for the medical negligence by the O.P.s while performing operation of the complainant Smt. Kamala Vatu Shastrakar.
1. The material facts, as emerging from the complaint, necessary for disposal of the complaint are as follows:-
That, complainant Smt. Kamala Vatu Shastrakar was suffering from stomach pain and approached O.P.No. 1 Dr. Pradeep Meghare for treatment. O.P.No. 1 told her that she requires surgical treatment. He admitted her in his nursing home on 06/10/2009 and operated on 08/10/2009 charging Rs.12,500/-. In his written statement O.P.No.1 stated that O.P.No.2 Dr. Ashish Kubde performed the said surgical process and therefore O.P.No. 2 is added in this complaint.
The complications arose due to negligence on the parts of O.P.’s while performing the surgery. It was told by O.P. that mistakenly the urine bladder was damaged in course of surgery. The complainant was required to carry a catheter all the while with her due to negligence of the O.P in performing operation. The O.P. No. 1 referred the complainant to Dr. Pathak but did not handover complete case papers and receipt of payment.
As per advice of the O.P. the complainant took treatment from various doctors, but could not get relief till April 2010. The urine was discharging without control, which causes inconvenience and sufferings to the complainant all the while.
The O.P.’s are guilty of medical negligence on the following grounds –
- The uterus of the complainant was removed without her knowledge and consent.
- No pre-operative investigations were properly conducted.
- Fitness for surgery was not properly investigated.
- No informed consent was taken for removal of uterus from the patient or her relatives.
- The problem was gynaec but operation was not conducted by gynaecologist.
- Standard surgical procedure was not followed.
- Post operative care was not properly taken.
- Proper discharge instruction and follow up was not observed.
The complainant was compelled to approach various doctors and spent extra amount of Rs.30,000/- for travelling expenses and Rs.40,500/- towards medical expenses. She suffered loss of reproductive organ for which claiming damages of Rs.50,000/- and also claiming damages of Rs.18,50,000/- for the loss and sufferings as her life because measurable due to negligence of the O.P.s.
The complainant issued notice to O.P.No. 1 on 15/02/2010 claiming total damages Rs.20,00,000/- but O.P. failed to comply with the notice hence, the complainant claimed that much amount of damages in this complaint.
The complainant filed following documents in support of her claim-
- Dr. Y.M.Choulera’s fitness certificate
- Dr. Bawankar pathology report
- Dr. Meghare discharge card and bill
- Dr. R. Ravi pathology report and bill
- Dr. Pathak’s opinion
- Sanjivani Hospital
- R S T Cancer Hospital
- Sanjivani Hospital discharge card
- R S T Cancer Hospital
- Dr. A.S.Kuthe Histopathology opinion
- Registered notice and postal receipt.
2. O.P.No.1 Dr. Pradeep Meghare submitted his written statement and strongly opposed the complaint. He has contended that the complainant was a patient of ovarian cancer which was required radical procedural histoctomy. However, she has suppressed this material fact from the forum. She very well knows that she was operated by Ashish Kubde of Nagpur with the aid and assistance of O.P.No. 1. Dr. Kubde is a well known Gynac surgeon and is specialized in dealing with the operative procedures on such patients. In discharge summary itself the charges paid to said expert Rs.4,000/- are mentioned, The complainant intentionally suppressed this fact in her complaint and has not approached the forum with clean hands. O.P.No. 1 and 2 had explained the complainant about her illness owing to malignancy in her ovary and the Procedure by which she can be saved. Further procedure was also explained to her by O.P.No.1 as well as by surgeon Dr. Kubde. After understanding all the pros and cons and the course of treatment, the risk factors, the complications etc. she signed consent form before operation. The Sonography report alongwith pathological reports including one filed by complainant as document No. 2 had led experts to reach to the conclusion that she is patient of ovarian cancer and was in such earliest stage requiring medical procedural histactomy. She was admitted in the hospital after getting her examined by Dr. Yogesh M. Choulera for fitness for being operated (Doc.No.1 filed by complainant) on 06/10/2009 and appointment of Dr. Ashish Kubde was fixed for 08.10.2009. As per appointment Dr. Ashish Kubde took the charge of patient with his associate and in association of all the expert final check up was done and getting satisfied with the same, the complainant was operated by Dr. Ashish Kubde. There was no negligence shown by either of the practitioners in treating the complainant. As a standard procedure which is followed all over the world, after operation the patient is required to take appropriate treatment from the cancer specialist and therefore, for chemotherapy and consequential management she was referred to Dr. Pathak of Nagpur with a covering letter giving full history and operative notes and all the medical treatment record. However, it appears from the record that the complainant only once visited Dr. Pathak, who also carried certain pathological investigations and re-affirmed malignancy (cancer) and started treatment, but the complainant restrained herself from visiting Dr. Pathak nor turned to either Dr. Ashish Kubde or O.P.No. 1 any time for follows up and clinical advice. On her own accord she chooses to go here and there. As a normal consequence (which cannot be termed as complications) in such patients she became a patient of Vascular Vaginal fistula for which allegedly she was required to get operated is also false. Even after her hospitalization at Sanjivani Hospital again she was referred to Dr. Anand Pathak. All the while her track of treatment confirms that she was a patient of malignancy and as a normal consequence, the patient problem of causing damage to urinal track due to malignancy cannot be attributed to an act of negligence on the part of medico persons who has treated her well in time, with due diligence and within the frame of their expertise. The O.P.No.1 has taken objection as to maintainability of the complainant for nonjoinder of necessary party i.e. Dr. Ashish Kubde. Subsequently, Dr. Ashish Kubde has been jointed as O.P.No. 2 as per order of the forum dt.01/03/2013 and this defect has been cured.
O.P. has denied that the complainant has taken treatment from various doctors as per his advice. She only once visited Dr. Pathak and then she never turned to the O.P. He has submitted that cancer is a dreadful disease and is subject to management and only timely action can prevent spreading in the body and consequent death, but in rarest case, it is completely cured after it has reached in some advance stage which has happened in case of the complainant. When complainant approached O.P. she was having unbearable severe stomach pains from which she is relieved. For carrying the catheter with her owing to ovarian cancer is sorry state, but it is a consequence of her ailment, not for any sort of negligence on the part of any of the treating medical professionals. The alleged causing of inconvenience has nothing to do with treatment which she received in the hospital of O.P. He has denied that pre operative investigations were not properly conducted. What other pre operative investigations were required is not disclosed. What was expected to be done by the medico practitioner of ordinary prudence was rightly done by the O.P.
Dr. Ashish Kubde, a leading Gynaec surgeon of Central India with the aid of O.P.No.1 who is M.D. in surgery and is competent to do gynaecological surgeries has conducted the surgery on the complainant. All the standard surgical procedure was followed. Complainant had not demonstrated as to what procedure was expecting, but not followed.
In fact, after menopause in the women such problem is found in various patients and as a standard procedure, always histactomy is required to be done and for further management, patient is required to undergo chemotherapy. After menopause that too at the age of 52 years, complainant is falsely claiming that she has lost her reproductive organ and claiming damages on that ground. The reliefs claimed are hypothetical and false with the intention to extract money from the O.P.s instead of giving thanks for saving her life. None of the doctors whose complainant has taken treatment have opined that there was any sort of negligence shown by the O.P. by treating her. Even the complaint is bad for not filing any opinion from the expert suggesting negligence on the part of O.P. with this prayed for dismissal of the same with heavy costs.
3. After amendment of complaint and impleading Dr. Ashish Kubde as O.P.No. 2, he has adopted the Written Statement of O.P.No. 1 and further submitted that he has passed MBBS, DGO (Gynac) in 1995 from G.M.C.H. Nagpur and has done near about 200 operations of ovarian cancer since 1996 till 2009 and near about 18000 other operations. On 08/10/2009 he had informed complainant and her husband about Pros & Cons of operation for removal of uterus. After obtaining their consent he has performed operation for removal of uterus. During the course of operation there was no damage to urinary bladder.
While operating the complainant he took all precautionary measures as per standard practice prevailing in Vidarbha and text book. There was no negligence on the part of O.P.No. 1 & 2 while performing operation. The complaint is false and liable to be dismissed.
4. Following points arose for determination. The forum has recorded its findings thereon as under for the reasons given hereafter.
Points Findings
1. Whether, O.P.No. 1 & 2 acted negligently in treating the complainant and thereby provided deficient service? No.
2. Whether complainant is entitle for compensation?
If yes, what is quantum? No.
3. What order? As per final order.
REASONS
5. As to Point No. 1 :- In the present case, it is admitted fact that the complainant Smt. Kamala Shastrakar, was suffering from stomach pain and approached the O.P.No. 1 Dr. Pradeep Meghare for his advice and treatment. It is also admitted fact the O.P.No. 1 admitted her in his nursing home 06/10/2009 and she was operated by O.P.No. 2 Dr. Ashish Kubde on 08/10/2009 with the assistance of O.P.No. 1. It is also admitted fact that the complainant has paid Rs.12,500/- to the O.P.No. 1 towards operation charges.
Mr. Kotwal the learned counsel for complainant submitted that the O.P.No. 1 has removed the uterus of the complainant without her consent and while performing the operation negligently damaged Urinary Bladder in the result of which the complainant was compelled to carry a catheter all the while with her. To canvass his arguments he relied on the contents of consent letter filed by the O.P.No. 1 as Doc.No. 1 with list dtd. 08/10/2010. He has submitted that though the said document bears the signature of the complainant Kamala and signature of her husband Vatu Govinda Shastrakar as a witness, the date is shown below the signature of complainant is 06/10/2010 and below the signature of her husband Vatu is 08/10/2010. In fact the complainant was operated on 08/10/2009 therefore, it is crystal clear that the O.P.No. 1 has obtained signature of complainant and her husband on blank form and subsequently it was filled up mentioning the wrong date. Obtaining the signature of complainant and her husband on the consent form without filling it is no consent and the complainant was not known that her consent was for removal of uterus. To support his contention Adv. Kotwal relied on following authority.
- I (2008) CPJ 56 Supreme Court, Samira Kohli vs. Prabha Manchada (Dr.) & anr. Wherein, It was held,
“Consent not obtained for removal of reproductive organs. Summary of surgical procedure confirms that no emergency or life threatening situation develop during laparoscopy. Consent given for diagnostic and operative laparoscopy and laparotomy of needed, not amount to consent for OH-BSO Surgery removing reproductive organs.”
- (2016) 2 BomCR 55:(2016) 2 MhLJ 266, Umakant Kisan Mane vs.The Dean, Rajawadi Muncipal Hospital & ors. Wherein it was observed,
“5. From the enquiry report and the medical reports which are placed on record, it appears that when the petitioner was admitted in to the hospital, he was suffering from convulsion cerebral malaria and meningitis. He was irritable and semi-conscious. According to the report, the petitioner developed gangrene to the right hand because of extravasations of the fluids and drugs which were being administered to the petitioner. As per the report, 25% Glucose, Renitidine, Ampolox, Mannitol, which were administered to the petitioner can cause such injury if extravasations is given. Thus, according to the report, as fluid which was given extravasations instead of going into the vein spread under the skin of the petitioners right arm and gangrene was caused. The inquiry report further shows that the consent of the father of the petitioner obtained for performing the operation but the forms were not signed by the doctors and the signature father of the petitioner was in Marathi but the consent is in English language. There is no signature of witness showing that the father was explained the nature of ailment and the operation in the language that he knows. It does appear from the report that there was kind of communication gap between the physician who were treating the petitioner and the petitioner’s relatives.”
He has further argued that without the consent of the complainant the O.P.No. 1 & 2 removed her uterus which is the reproductive organ. The O.P.’s have not adopted due procedure for performing the operation and conducted the operation negligently thereby damaging Urinary Bladder. The damage to Urinary Bladder caused incontinence for which the complainant had to carry catheter with her all the times which made her life miserable.
The O.P.No. 1 had told the complainant that mistakenly the urinary bladder was damaged in the course of operation and referred the complainant for further treatment to Dr. Pathak at Nagpur. But, even after getting the treatment from Dr. Pathak there was no relief to the complainant. The treatment papers of Dr. Pathak are at Doc. No. 5 & 6. Therefore, the complainant required to take treatment at Sanjivani Hospoital , Nagpur and was operated for Vesicovaginal Fistula on 27/10/2009. The discharge summary is at Doc. No. 9.
The above evidence shows that the O.P.’s have conducted the operation negligently and damaged Urinary Bladder. He has also submitted that the complainant also suffered from Vaginal Fistulas after the Histerotomy operation which was performed by the O.P.’s negligently. Therefore O.P.’s are guilty of medical negligence.
To canvass his arguments he has relied on the literature drawn from internet, wherein it is mentioned, “Vaginal Fistulas can also be associated with Hysterotomy.” Thus according to Mr. Kotwal, O.P.No.1 & 2 performed the operation negligently in the result of which the complainant developed Vaginal Fistula for which the complainant had to undergo another operation at Sanjivani Hospital, Nagpur and had spent Rs.75,000/- for that. This is the medical negligence on the part of O.P.No. 1 & 2.
As against this the learned counsel for the O.P.No. 1 & 2 submitted that when the complainant came to O.P.No. 1 with trouble of stomach pain she was referred to Dr. Poonam Bawankar for Pathological Examination. The result of Pathological Examination 08/10/2009 is filed by the complainant as Doc.No.2. The report of the Pathologist on Histopathology is as under-
“SECTION SHOWS HISTOLOGICAL FEATURES SUGESTIVE OF MUCINOUS YSTADENOMA OF BORDERLINE MALIGNANT POTENTIAL.”
Therefore, it is crystal clear that the uterus of the complainant was infected with cancer and it was urgently required to be removed by performing for surgery. Therefore, by taking all care and adopting due procedure O.P.No. 2 Dr. Ashish Kubde with the assistance of the O.P.No. 1 has performed the operation for removal Uterus. He has further argued that when the Uterus is infected with cancer and the hysterectomy is done for its removal the side effects of such operation alongwith others is Urinary or fecal incontinence may occur. It can also be caused by Radiation therapy and Cone biopsy as mentioned in the literature submitted by the learned counsel of the complainant.
O.P.No. 2 is MBBS DGO who has performed near about 200 operation of removal for Uterus as stated by him in his evidence. He was stated as the complainant and her husband Vatu was informed that the Uterus of complainant needs to be removed and it was removed only after their consent. The consent papers placed on record with the signature of the complainant and her husband Vatu were signed by them before the operation and this fact is admitted by them. This supports contention of O.P. that the consent was taken prior to operation. There is nothing on record to show that Urinary Bladder was damaged while performing the operation and the complainant suffers incontinence in result of damage to Urinary Bladder. Without such evidence it cannot be said that the complainant suffered incontinence because of damage of Urinary Bladder. The O.P.’s have performed the operation with all skills and by adopting the required procedure. Therefore, There is no negligence on their part.
Considering the evidence on record and the arguments of the counsel of the complainant and O.P.s, it is clear that the complainant was suffering from Cancer of Uterus and it was necessary to remove Uterus to save her life. Her consent was duly obtained prior to performing the operation and she was also examined by Dr. Yogesh Choulera, who had certified that the patient was fit for surgery as evident from Doc. No. 1 filed by the complainant. Therefore, there is no force in submission that the Uterus of the complainant was removed without necessity and without her consent. The literature available on internet shows,
“if cancer is present in the ovaries, uterus, cervix or lining of the uterus, as hysterectomy may be the best option for treatment.”
It further shows that,
“the incontinence & Vaginal Fistula can be a side effect of hysteroctomy, cancer operation, radiation therapy and cone biopsy.”
Therefore, if the vaginal fistula is developed and the complainant suffered from incontinence after hysterectomy being the side effects of the operation for removal of uterus infected with cancer, the surgeons performing operations cannot be blamed for the same. There is no evidence on record to show that while performing the operation the Urinary Bladder was damaged and in the result the complainant suffered incontinence.
It will be beneficial to go through the following observations of The Hon”ble Punjab State Consumer Disputes Redressal Commission, Chandigarh in complaint case no. 7 of 2010 Shashi Bala Vs. Chahal Hospital (Multi Specialty Hispital) (decided on 6th June. 2015) as to what are essential for proving the medical negligence. The Hon’ble State Commission observed as under-
“Herein, the doctor is a qualified surgeon, who conducted the operation on complainant and followed the standard medical treatment duly recognized by medical literature to cure the complainant. The complications are accompanying part of any operation/surgery and they could occur to any person at any time. A Surgeon never undertakes to cure a person and he can exercise his best care for the welfare of the patient and he cannot guarantee the hassle-free system to the complainant. We find that there is no evidence of any damage to kidney or Neurological system of the complainant, as per report of the experts given by the PGI doctors on the record.
7. In view of the our above-referred findings, we find that O.P. followed the Standard Medical Treatment for treating the complainant and Dr. J.S.Chahal is a qualified surgeon. There is no deviation from Medical Standard practice by Dr. J.S.Chahal who is a qualified Surgeon. There is no evidence of any damage to the kidney or Neurological system of the complainant proved on the record. Consequently, when Standard Medical Treatment has been followed by the O.P. to take care of the complainant, the complainant has give specific instances of act of omission and commission on the part of the O.P.s in constituting any medical negligence by OP. Every advance technology is replete with risks. Dr. J.S.Chahal on the basis of radiologist’s report conducted surgery on the infected part only as per medical standard practice. The law laid down by the Hon’ble Supreme Court In “Kusum Sharma andothers Vs. Batra Hospita and Medical Research Centre and others, reported in 2010 (2) CLT 282 (SC)=2010(3) Supreme Court Cases 480” is to the effect, to prove medical negligence of the treating doctors, the complainant has to prove facta probanda as well as facta provantia. Negligence is an omission to perform the duty enjoined on a person by law. The essential components of negligence are three: “duty” breach and “resulting damage”. The complainant could not establish, as to on what point, OP as negligent and on what point OP deviated from the Standard Medical Practice in treating the complainant. The board of doctors of PGI exonerated the OP from any medical negligence in this case and we are bound by that, as there is no evidence to the contrary to rebut it.”
In the present case also there is no evidence to prove the negligence of O.P.No. 1 & 2 while performing the operation and the authorities relied upon by the learned counsel of the complainant are not applicable to the different set of facts of the present case. Therefore, finding as to Point No. 1 is recorded in the negative.
6. As to Point No. 2 & 3 :- In view of finding point no. 1 the OP No.1 & 2 has not committed any negligence in operating and treating the complainant and therefore complainant is not entitled for any reliefs as claimed in the complaint. For the above reason the finding as to points No. 2 & 3 are recorded accordingly.
In view of above findings Forum has passed the following order.
ORDER
1. The complaint u/s 12 of the Consumer Protection Act, is dismissed.
2. Parties to bear their own costs.
3. Copy of the order be supplied to the parties free of costs.
4. B & C file of the complaint be returned to the complainant.
