Complaint filed on: 30-10-2010
Disposed on: 09-01-2013
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.2501/2010
DATED THIS THE 9th JANUARY 2013
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SMT.NIVEDITHA.J, MEMBER
Complainant: -
Smt.Sherly Vasan,
W/o. Late Parthasarathy,
Aged about 40 years,
R/a. No.24, 15th Main Road,
Basaveshwara Nagar,
Bangalore-79
V/s
Opposite parties: -
1. Dr.Latha Inamdar,
Gynecologist and Proprietor of
Trupti Nursing Home,
No.463, 1st Block, III Stage,
Dr.Siddaiah Puranik Road,
Basaveswaranagar,
Bangalore -79
2. Dr.Vijaya Kumar,
Laparoscopic Surgeon,
Trupti Nursing Home,
No.463, 1st Block, III stage,
Dr.Siddaiah Puranik Road,
Basaveswaranagar,
Bangalore - 79
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OPs no.1 and 2, under section 12 of the Consumer Protection Act,1986, praying to pass an order, directing the OPs to pay a sum of Rs.15,57,000=00 together with interest, cost and pass such other relief as deemed fit in the interest of justice and equity.
2. The brief facts of the complaint can be stated as under.
The complainant is a qualified clinical and pathologist and is running a clinical laboratory by name and style Sri.Lakshmi Clinical Laboratory at No.45, 5th Cross, Opp. to Sri Ram Bhavan Sweets and Snacks, Kurubarahalli main road, Bangalore, and her husband died a year ago, and she has to take care of her son and also clinic. The complainant had earlier undergone laparotamy for Cysteotomy about 5 years ago and there is a vertical punctured scar. The complainant started getting pain in the abdomen of and on since Oct.2009 and in the month of April 2010, the pain in the abdomen became more severe, and so she approached the OP no.1 who is renounced Gynecologist, running the nursing home under the name and style Trupti Nursing Home. The complainant was examined by OP no.1 and it was diagnosed that there is a growth on the right ovary and OP no.1 advised the complainant that she shall under go laparoscopy for the removal of the cyst. OP no.1 has informed the complainant that, the OP no.2 is a qualified laparoscopic surgeon and that laparoscopy will be conducted by OP no.2 and Laparoscopy that will be performed would not take time of more than 30 minutes to the maximum of one hour. The complainant was also assured by the OP no.1 that the laparoscopy would be conducted smoothly without any hassle. Accordingly the complainant got admitted in the OP no.1 hospital on 29-4-2010 at abut 1.15 PM and was taken to the Operation Theater and she was administered general anesthesia. The complainant regained consciousness and became restless due to the pain. At that time, the complainant was able to hear the OP no.1 telling the OP no.2 that the patient is regaining consciousness and urging the OP no.2 to stop the surgery if he is unable to do. The complainant could make out that there was lot of anxiety and fear in her voice, and again the complainant was subjected to anesthesia and later came to know that the OP no.2 took more than 4 hours as against the normal time of 30 minutes to one hour for performing the laparoscopy as assured by them. The complainant was shifted to the ICU at about 9.30 p.a. and later she was shifted to the ward, and she was discharged on 2-5-2010 and till such time the complainant was under liquid diet. The OP no.2 except performing the laparoscopy on the complainant on 29-4-2010, did not visit the complainant for further follow up treatment during her stay in the nursing home and till she was discharged on 2-5-2010. The complainant was advised to take semi liquid and semi hard food after discharge, and she started consuming rice, ganji and bland vegetables. On 4-5-2010 the complainant developed uneasiness, breathlessness and distension of abdomen and pain. The stomach had swollen so heavily and she was unable to even sit or move about, and immediately rushed to the nursing home run by the OP no.1, and the OP no.2 checked the complainant and stated that it was Gastric and there is no other problem. However the condition of the complainant became worse and her pulse rate increased and the complainant was unable to breathe, and in the course of time, the complainant started gasping. The OP no.1 immediately called the physician in her hospital and he advised to shift the complainant to a hospital which has ICU facility. The relatives of the complainant having realized that, the OP no.1 and 2 were unable to give immediate respite to the complainant shifted to Panacea hospital, Basaveshwara Nagara, Bangalore, and the doctors at Panacea hospital advised the complainant to under go scanning and accordingly the complainant was referred to Kanva Diagnostics Rajajinagar, Bangalore, and it was diagnosed that there was a tear on the anterior wall of the colon measuring 4-5 cms, and Dr.Anand Kumar at Panacea hospital has stated that by seeing the scanning report that the OP no.1 and 2 have committed negligence while performing the laparoscopy on the complainant, and the complainant was made to understand that the OPs while performing the laparoscopy have punctured the intestine (colon) and as a result the feacus has spread to the stomach and other areas resulting in septicemia. Dr.Anand Kumar at Panacea hospital was annoyed seeing the condition of the complainant and called the OP no.1 and 2 to the hospital and showed them the result of their negligence on the complainant. The complainant underwent emergency exploratory Laporatomy at Panacea hospital and closure of sigmoid perforation and diversion ileostomy on 4-5-2010. The complainant was treated in ICU and was on ventilation and she was administered antibiotics, antacids, analgesic IV fluids, Ionotropes, O2 inhalation, bronchodilators, nebulization etc and supportive drugs and the complainant was on ventilator. As a result of the exploratory Laporatomy the feacal outputs are collected in a colostomy bag connected to the right side of the stomach and the complainant has to change the said bags every now and then. The complainant had to undergo mental agony as she was unable to attend to the clinic or attended any functions or social gatherings. The complainant had to engage the services of qualified clinical and pathologist for running her clinical laboratory and she has been paying a sum of Rs.6,000=00 to each of the personal managing the laboratory since May 2010. That apart several clinical tests which were undertaken by the complainant was unable to be done due to the complainant’s illness and so those tests were referred to RV lab situated at Malleshwaram and the complainant herself had to bear the cost for such tests. Due to the same the complainant had to incur an additional loss of Rs.10 to 15 thousand per month. On 13-9-2010 she was again admitted to Ananya hospital and was inpatient till 21-9-2010 and the doctors at Ananya have performed closer of ileostomy. The complainant has spent a sum of Rs.42,000=00 apart from the medical expense of Rs.10,000=00. The complainant is under further treatment even till today. The OP no.1 and 2 before conducting the ovarian Cysteotomy the risk factors which ought to have been considered for intestinal injury are, a) previous laparotamy for hysterectomy b) Tender ® ovarian Cysteotomy may be due to infection/endometrioma which predisposes to adhesions c) Unhealthy scar of previous surgery. These factors were never taken consideration by the OP no.1 and 2 while performing the Cysteotomy. The OP and 1 and 2 have performed the hysterectomy on complainant without taking these factors into consideration and consequently. The complainant has earlier undergone Laporatomy for hysterectomy there was every chance of the organs getting damaged at the time of the Cysteotomy conducted by the OPs. So the OPs did not show due diligence to observe if there was any exploration which could have been observed only in the subsequent days when the complainant takes solid food. The complainant was an inpatient in the hospital till 2-5-2010 and she was administered only liquid diet and IV fluids. After the complainant got discharged she started consuming semi liquid and semi hard diet and it is only at that time that the digested food started perforating through the tear on the anterior wall of the colon which was measuring 4 to 5 cms. As a result of the collection of the feacus out side the digestive system the complainant developed septicemia with septic shock. The OPs did not exercise due diligence and as a result the complainant was driven to mental agony, physical pain apart from financial loss. The complainant had reposed trust on the OPs as they claim to have the special knowledge, the OPs on the other hand by their sheer negligence have caused the injury to the colon and put the complainant to the risk of death as a consequence of septicemia. The complainant had issued the legal notice dated 14-8-2010 to the OP no.2 calling upon him to pay sum of Rs.15,00,000=00 as damages. On service of notice the OP no.2 met the complainant at her residence and tried to justify his action. The OP no.2 however had assured the complainant that he would settle the claim after consulting the OP no.1. However, the OPs no.1 and 2 have not come forward to any sort of settlement or negotiation. Hence, the present complaint is filed.
3. After service of the notice, OPs no.1 and 2 have appeared through their counsel and filed objections separately. The averment of objections of the OPs no.1 and 2 can be stated in common as under:
The complaint is misconceived, opposed to facts and circumstances of the case, and it is not maintainable in law. The assertion that, the complainant had undergone laparotamy for hysterectomy about 5 years ago is true and correct, and this fact is also noted in the case sheet, when the complainant was admitted as inpatient on 29-4-2010, and other assertions in the complaint that the complainant had pain in the abdomen and she approached these OPs, and the complainant was diagnosed as suffering from right Ovarian Cyst and the OPs have conducted the Laparoscopy are true and correct, and the OPs have conducted Hysterectomy procedure for the complainant about five years ago, and the OPs were also acquainted with the complainant as they had met this complainant as a representative of a clinical laboratory. The complainant visited the OPs complaining of pain in the abdomen. The OPs after examination and investigations, advised the complainant to undergo laparoscopic surgery for removal of Ovarian Cyst. The complainant was advised to undergo 2-D Echo study and consult Senior Cardiologist for fitness before surgery and these tests were done. At the time of the complainant’s admission for the laparoscopic procedure on 29-4-2010, the details of the procedure and possible complications were explained to the complainant and her consent for the said procedure was obtained in writing. As such, the assertion that there was assurance that, the Laparoscopic procedure will be completed within 30 minutes to 60 minutes without hassle is completely false and incorrect. The complainant is put to strict proof of all allegations made in this regard. The complainant was administered general anesthesia by Dr.Kasthuri.S.A who was present during the entire procedure. The complainant had right ovarian Cyst with plenty of adhesions. The necessary Laparoscopic cystectomy and adheseolysis was done with all due care and caution. As a matter of standard procedure thorough irrigation and suctioning of the abdomen was done for ruling out incidental damages. In the process of irrigation and suctioning fluid is pumped into abdominal cavity and then the fluid is suctioned to rule out perforation or injury. During this procedure the abdomen were thoroughly looked for any damages. The entire process was completed within period of 2 hours. The complainant did not regain consciousness during the procedure. It is indisputable that a person who is administered anesthesia will be in a state of altered consciousness during the recovery stage when anesthesia is with drawn; it is not possible for a person either in the state of unconsciousness or in the altered consciousness to comprehend any conversation. In fact, during the state of unconsciousness and altered consciousness, the patient will not feel even the excruciating pain. After the laparoscopic surgery, which took two hours, the complainant was in the operation theater until regained consciousness. Later, she was shifted to ICU; the complainant’s condition was monitored in the ICU for more than 24 hours. Thereafter the complainant was shifted to the ward, and she was started on IV fluids and oral fluids and subsequently on soft diet. The complainant did not have any abdominal distention and in fact she passed stools during this time which are indicatives of a stable recovery. The complainant was discharged on 2-5-2010 in a stable condition. The complainant at the time of discharge neither complained of distention nor other extraneous discomforts. The complainant was extended all good care as per the accepted standards of care. The complainant was admitted as in inpatient when she complained of acute pain in the abdomen. The Clinical examination showed abdomen tenderness, distention and rigidity. The complainant was administered pain killers and antibiotics and she was started on IV fluids with other supportive treatment and as perotinitis was diagnosed, Ryle’s tube was passed and general surgeon Dr.Surendra.K.S, who was called upon to attend on the complainant. The OP no.2 was also called and as per the advice of OP no.2 erect abdomen X-ray and abdomen scan were done to rule our bowel injury. The X-ray and the scanning reports were inconclusive as the reports indicated Pnemopertioneum and post laparoscopic status. The complainant was advised abdominal CT scan if the distention were continued despite the medicines prescribed. However because the complainant had tachycardia and breathlessness she was shifted to Panacea Hospital under the care of Dr.Sumathi Kumar. As ascertained by these OPs the complainant was advised to undergo CT scan of abdomen and pelvis, and this CT scan report also suggested Pnemopertioneum and suspicion of perforative peritonitis and was not conclusive of perforative peritonitis and only thereafter exploratory laparotamy was undertaken. These OP had also advised CT scan as further investigative procedure. The complainant is not a qualified pathologist and the clinical laboratory is run with the assistance of a qualified Pathologist. Therefore, the claim made by the complainant that because of her condition she had to engage the services of a qualified pathologist is totally false and incorrect. The assertions that she had to refer her clients to other laboratory at Malleshwaram are also incorrect. Laparoscopic Ovarian Cystectomy is also a standard procedure for removal of ovarian cyst on a patient with medical history of Caesarian section and Hysterectomy and in other word medical history of caesarian section and Hysterectomy is not a contra indication for laparoscopic ovarian cystectomy. As such as per the standard procedure the ovarian cyst was removed laparoscopically and adhesions were also released. The sigmoid colon aberration/perforation as a gastrointestinal complication frequently occurs during gynecological laparoscopic surgery. The complainant has not caused any notice to OP no.1 and no allegations of lack of skill or lack of hygiene or lack of examinations are made against the OPs which are essential concomitants to allege and sustain a complaint of deficiency of service as declared by the Hon’ble Supreme court, and the complainant has not placed prima facie material for initiation of proceedings as declared by the Hon’ble Supreme Court. As prima facie material of deficiency in service the complainant ought to have placed an independent report by a qualified and in the absence thereof the complaint is liable to be dismissed. The OPs are not liable to pay any damages claimed by the complainant, so it is prayed to dismiss the complaint with exemplary cost.
4. So from the averments of the complaint of the complainant and objection of the OPs, the following points arise for our consideration.
1. Whether the complainant proves that, the OPs no.1 and 2 have not exercised due diligence as is expected in the ordinary course and have committed the deficiency of service, and they have caused the injury to the colon by their sheer negligence and put her to the risk of death as a consequence of septicemia?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
4. Our findings on the above points are;
Point no.1: In the Affirmative
Point no.2: The complainant is entitled to Rs.5.00
Lakhs as a compensation alongwith
9% interest from the date of complaint and
Rs.5,000=00 towards cost of litigation.
Point no.3: For the following order
REASONS
6. So as to prove the case, the complainant has filed her affidavit by way of evidence, and she was cross-examined as CW-1, and one of the witness by name Dr.Anand Kumar.J was examined as witness on behalf of the complainant, and produced four documents with list dated 30-10-2010, and produced 11 documents with memo dated 10-3-2011, and three more documents alongwith list dated 29-11-2011, and produced expert report issued by the Karnataka Medical Council dated 20-12-2010, and produced scan report dated 6-1-2012, and scanned photos alongwith memo dated 23-1-2012. On the other hand, Dr.Latha Inamdar who being the OP no.1, and Dr.Vijaya Kumar, who being the OP no.2 have filed their affidavit by way of evidence and produced copies of Inpatient records, Nurses records, Operation record, Progress sheet, Checklist of Panacea hospital, Discharge summary, Progress sheet, Intake and output record, Operation Record, and one letter from Trupti Nursing Home etc. were produced, and three more documents with memo dated 21-3-2011 were produced. We have heard the arguments of both sides, and we have gone through the oral and relevant documents of both parties meticulously.
7. One Smt.Sherly Vasan, who being the complainant has filed her affidavit which is filed by way of examination that, she had earlier undergone laparotamy for cysteotomy about 5 years ago and there is a vertical punctured scar, she started getting pain in the abdomen since Oct.2009 and in the month of April 2010, the pain in the abdomen became more severe, and she approached the OP no.1 who is renounced Gynecologist, running Trupti Nursing Home, and she was examined by OP no.1 and it was diagnosed that there is a growth of cyst on the right ovary and OP no.1 advised her that she shall undergo laparoscopy for the removal of the cyst, and OP no.1 has informed her that, the OP no.2 is a qualified laparoscopic surgeon and he will do laparoscopy and OP no.1 told her that, the laparoscopy would not take time of more than 30 minutes to the maximum of one hour. The laparoscopy will be done smoothly without any hassle, and she got admitted in the hospital of OP no.1 on 29-4-2010 at abut 1.15 PM and she was taken to the Operation Theater and administered general anesthesia, and she regained consciousness and became restless due to the pain, and at that time, she was able to hear the OP no.1 telling the OP no.2 that the patient is regaining consciousness and urging the OP no.2 to stop the surgery if he is unable to do and she could make out that there was lot of anxiety and fear in her voice, and she was again subjected to anesthesia and later she came to know that the OP no.2 took more than 4 hours as against the normal time of 30 minutes to one hour for performing the laparoscopy as assured by them. She was shifted to the ICU at about 9.30 P.M. and later she was shifted to the ward, and she was discharged on 2-5-2010 and till such time she was under liquid diet. The OP no.2 except performing the laparoscopy on her on 29-4-2010, he did not visit her for further follow up treatment during her stay in the nursing home. She was advised to take semi liquid and semi hard food after discharge, and she started consuming rice, ganji and bland vegetables. On 4-5-2010 at about 1 a.m. she developed uneasiness, breathlessness and distension of abdomen and pain, and she was unable to even sit or move about, and she was immediately rushed to the nursing home of OP no.1, and OP no.2 checked her and stated that it was Gastric and there is no other problem. However her condition became worse and her pulse rate increased and she was unable to breathe. The OP no.1 immediately called the physician and he advised to shift her to a hospital which has ICU facility, and her relatives having realized that, the OP no.1 and 2 were unable to give immediate respite to her, so they have shifted her to Panacea hospital, Basaveshwara Nagara, Bangalore, and scanning was done and she was referred to Kanva Diagnostics Rajajinagar, Bangalore, and there she was diagnosed and they found that there was a tear on the anterior wall of the colon measuring 4-5 cms, and Dr.Anand Kumar at Panacea hospital has stated after seeing scanning report that, the OP no.1 and 2 have committed negligence while performing the laparoscopy on her, and she was made to understand that, the OPs while performing the laparoscopy have punctured the intestine (colon) and as a result the feacus has spread to the stomach and other areas resulting in septicemia. Dr.Anand Kumar at Panacea hospital was annoyed seeing her condition and called the OP no.1 and 2 and showed them the result of their negligence. She underwent emergency exploratory Laporatomy at Panacea hospital and closure of sigmoid perforation and diversion ileostomy on 4-5-2010, and she was treated in ICU and was on ventilation. As a result of the exploratory Laporatomy the feacal outputs are collected in a colostomy bag connected to the right side of the stomach and she has to change the said bag every now and then. She had to undergo mental agony as she was unable to attend to her clinic or attended any functions or social gatherings. She has to engage the services of qualified clinical and pathologist for running her clinical laboratory by paying a sum of Rs.6,000=00 to each of the persons, since May 2010. The several clinical tests which were undertaken by her were unable to be done due to her illness and due to that, she had to incur an additional loss of Rs.10 to 15 thousand per month. On 13-9-2010 she was again admitted to Ananya hospital and was on inpatient till 21-9-2010 and the doctors at Ananya have performed closer of ileostomy. She has spent a sum of Rs.42,000=00 apart from the medical expenses of Rs.10,000=00, and she is under further treatment even till today. The OP no.1 and 2 before conducting the ovarian Cysteotomy the following risk factors ought to have been considered for intestinal injury are, a) previous laparotamy for hysterectomy b) Tender ® ovarian Cysteotomy may be due to infection/endometrioma which predisposes to adhesions c) Unhealthy scar of previous surgery. These factors were not taken into consideration by the OP no.1 and 2. The Operation notes do not mention whether the injury to the intestine was looker for specifically and consequently there was a tear on the anterior wall of the colon which led to feacal peritonitis. As a result of the collection of the feacus out side the digestive system, she developed septicemia with septic shock. The OPs did not exercise due diligence and as a result she was driven to mental agony, physical pain and financial loss. OP no.1 is a gynecologist running the Nursing Home by name Trupti Nursing Home and is also a recipient of the prestigious award. The OP no.2 is a laparoscopy surgeon and she was to believe, they have the special knowledge, and she had reposed the trust on them and had subjected herself for the surgery. They have not exercised due diligence as is expected in the ordinary course and they caused the injury to the colon by their negligence and put her to risk of death as a consequence of septicemia. So she has filed this complaint, praying to award Rs.15,00,000=00 towards medical expenses, attendant charges, loss of income, engaging the services at work spot, mental agony, pain and discomfort and general damages alongwith interest and cost, so the complaint be allowed and grant relief as prayed in the complaint, in the interest of justice and equity.
8. In the cross- examination, the complainant has stated that, she was not known what type of anesthesia was administered, at the time of doing operation, she regained consciousness for about 5 minutes, she did not hear the conversation between the doctors who were present in the operation theater. There was entry made in the case sheet about earlier two surgeries made, she was operated by OP no.1 and 2 for right ovarian cysts. It is true to say that, as per the CT scan report given by Panacea hospital, there is a suspicion of perforation peritonitis. It is true to say that, in the histopathology report as mentioned in the discharge summary of Panacea hospital there is mention made about ulcer. It is not to say that, perforation was at the site of ulcer only. It is true to say that, perforation was on her left side of the abdomen. It is not true to say that, perforation was not on account of operation done by OP no.1 and 2. It is not true to say that, she has been shifted to Panacea hospital by OP no.1 as per her request. It is true to say that, the OP no.1 used to send all the blood samples and other samples for test for to laboratory for the last 13 years. Now OP no.1 is not sending any blood samples or any other samples to her laboratory. It is true to say that, as OP no.1stopped sending samples to her laboratory for tests, so she has sustained monitory loss. She is having Mediclaim policy and Insurance Company has paid her entire operation charges at the hospital of the OP no.1. It is not true to say that, she has filed false complaint against the OPs without any cause or reason. In the cross examination, the counsel for OP no.1 and 2 have suggested to the complainant that, perforation was not on account of operation done by OP no.1 and 2 and she has been shifted to Panacea hospital by OP no.1 as per her request and that suggestion has been denied by the complainant in toto.
9. By careful reading of cross examination of the complainant as mentioned above, it is made to understand that, the OPs have not confronted any suggestion to the complainant refuting the negligence of OPs no.1 and 2 while conducting operation on the fateful day. The complainant has stated emphatically in chief examination that the injury has been caused to the colon, on account of sheer negligence of OP no.1 and 2 while doing operation, but in the cross examination, the OPs no.1 and 2 have failed to pose any suggestion denying the negligence of OPs no.1 and 2 in causing negligence to the colon during the operation. The whole cross examination of the complainant is ominous silent on this vital aspect, for the reason best known to the OPs no.1 and 2.
10. The complainant has filed her additional affidavit by way of further chief examination and she stated in further examination in chief that, after her cross examination she got tested in M.S.Ramaiah Hospital on 6-1-2012 and she got the report wherein it is stated that, her both the ovaries have been removed and this was due to the negligent act of OP no.1. In the cross examination, it is suggested to the complainant by counsel for the OPs that, she was duly informed about the surgery conducted in the year 2005 and 2010 and inspite of it, she is telling falsehood before the forum, and that suggestion has been denied by the complainant.
11. PW-2 Dr.Anand Kumar.J, Surgeon, working at Panacea Hospital has stated in his chief examination that, on 4-5-2010 the complainant was referred to their hospital with history of peritonitis with paralytic ileus, he investigated the patient, did CT scan of Abdomen and blood routine investigation, and on the same day, he operated and found peritonitis with sigmoid colon perforation, he closed perforation and done diversion ileostomy, subsequently patient was managed in ICU, and she recovered and was discharged from the hospital on 16-5-201, the case sheet is marked as Ex-P1A, discharge summary is marked as Ex-P3A. Number of causes for perforation of intestine, it may be peritonitis and blunt injury and also other cause may be ulcer. On opening the abdomen he found perforation, many times we find cancerous growth or ulcer and conclude that has led to perforation but in this case, he did not find either of them, so he cannot say, what is the cause such perforation. In the cross examination, PW-2 stated that he was doing surgery independently, since one year prior to this case, he denies that due to lack of experience perforation has taken place due surgery and thus he is liable for it.
12. Let us have look at the relevant documents of the complainant, so as to know, whether the oral evidence of the complainant is supported by documentary evidence or not. Document no.1 of the complainant list dated 30-10-2010 is copy of discharge summary of Panacea hospital issued in the name of the complainant, and as per the said document, the complainant was admitted on 4-5-2010 and discharged on 15-5-2010, under Final Diagnosis heading; it is stated that, Faecal Pertonitis with Sigmoid Colon Perforation, Septicemia with septic shock, and under heading of Surgery, it is stated that, Explorative Laparotomy, closure of Sigmoid perforation and Diversion Iliostomy Done under GA on 4-5-2010; and under heading of Details, it is stated that, Patient was apparently normal and underwent right ovarian cystectomy on 29-4-2010 in Trupti Nursing Home and discharged on 1-5-2010, and from 2-5-2010 patient developed abdominal distension with pain and re-admitted in Trupti Nursing Home and treated for peritonitis with paralytic ileus and later developed breathing difficulty increased distension of abdomen generalized weakness and tiredness since 3 days, now referred here for further management. The said document of the complainant disclose that, the complainant was admitted on 4-5-2010 in the Panacea Hospital and Explorative Laparotomy, closure of sigmoid perforation and Diversion Iliostomy done under General Anaesthesia on the same day i.e. 4-5-2010 and discharged on 15-5-2010. Earlier to that on 29-4-2010, the complainant underwent Right Ovarian Cystectomy in Trupti Nursing Home and discharged on 1-5-2010 and from 2-5-2010 the complainant developed abdominal distension with pain and re-admitted and treated for Peritonitis. Document no.2 is the copy of discharge summary of Ananya Hospital Pvt. Ltd issued in the name of the complainant, wherein it is stated that, the complainant was admitted on 13-9-2010 and discharged on 21-9-2010, and under Diagnosis column, it is stated that, Post ileostomy for Reversal of Ileostomy; under Brief Clinical History, it is stated that, the patient presented with history of ileostomy done due to faecal peritonitis after sigmoid injury which occurred during laparoscopic ovarian cystectomy done four months ago, presently admitted for closure of ileostomy. Document no.3 is the copy of CT Scanning report of Kanva Diagnostic Services Ltd, wherein under heading of Impression, it is stated that, Post right ileostomy status with normal appearing colon. Document no.4 is the copy of legal notice issued to OP no.2 dated 14-8-2010 by the complainant’s advocate stating that, the OP no.2 has conducted the Cystectomy and at that time he did intestinal injuries due to his negligence, so she has to undergone Exploratory Laporatomy as there was perforation of Anterior Wall of sigmoid colon, so called upon the OP no.2 to pay Rs.15,00,000=00 to the complainant and also cost of legal notice. The rest of the documents in the said list are Acknowledgement card of the OP no.2 and postal receipt.
13. Document no.1 of the complainant list dated 10-3-2011 is the copy of case sheet issued by Trupti Nursing Home of OP no.1 stating that, the complainant has undergone Laparoscopic Ovarian Cystectomy on 29-4-2010 and she was having acute pain in abdomen and she was advised to shift to the ICU management to higher hospital. Document no.2 is the copy of cash receipt issued by Karnataka Gastroenterology Center, for having received Rs.1,800=00 from the complainant on 26-8-2010. The rest of the documents of the complainant in the said list are, Cash receipt issued by Kanva Diagnostic Services Pvt. Ltd, Medical bills, Prescription chits issued by Panacea Hospital, cash paid receipt issued by Navarang Diagnostics Centre, True copy of certificate of complainant for having completed laboratory technician course, the copy of receipt issued by Commercial Tax department and Professional Tax.
14. The complainant has produced expert report issued by Karnataka Medical Council dated 20-12-2010 stating that, the complainant underwent Right Ovarian Cystectomy on 29-4-2010 under General Anaesthesia and Laparoscopic Surgical Performed by OPs no.1 and 2, and she was discharged on 2-5-2010 and again re-admitted to the hospital of OP no.1 and referred to Panacea hospital on 4-5-2010 and she was diagnosed to be suffering from Faecal Peritonitis with sigmoid colon perforation and Emergency Explorative Laparotomy closure of sigmoid perforation and diversion ileostomy was performed on 4-5-2010 at Panacea hospital and discharged on 15-5-2010 and Karnataka Medical Council is of the opinion that, Prima facie case of medical negligence is established against the R1 and R2.
15. A careful scrutiny of the averments of the complaint, oral and relevant documents of the complainant, it is made explicitly clear that, the complainant was admitted in the hospital of OP no.1 on 29-4-2010 at about 1.15 p.m., and she was taken to operation theater and was administered general Anaesthesia, the OP no.2 has performed Laparoscopy operation on the Right Ovarian for removal of the cyst and after operation she was shifted to ICU of OP No.1 hospital, on the same day at 9.30 p.m., later she was shifted to ward and the complainant was discharged on 2-5-2010, and she was advised to take semi liquid and semi hard food and accordingly she started taking rice, ganji and bland vegetable. On 4-5-2010 she was developed uneasiness, breathlessness and distension of abdomen and pain and the stomach had swollen so heavily and she was unable to sit or move about, and immediately, she was rushed to the Nursing home of OP no.1 and the OP no.2 checked and told that, it was Gastric and there is no other problem, but the health condition of the complainant became worse and she was unable to breathe and pulse rate has been increased, and as per the advise of the physician of the OP no.1, the complainant was shifted to Panacea Hospital situated in Basaveshwara Nagara, Bangalore, which is having ICU facilities. Doctors of Panacea Hospital have got done investigation by scanning through Kanva Diagnostics Rajajinagar, Bangalore, and at that time they noticed that, there was a tear on the anterior wall of the colon measuring about 4-5 cms. At that time, the complainant was made to understand that, the OPs no.1 and 2 while performing the Laparoscopy have punctured the intestine (colon) and due to that, the feacus has spread to the stomach and other areas resulting into septicemia. Dr.Anand Kumar working in the Panacea Hospital has observed the perforation of colon, when he opened the abdomen at the time of conducting operation in the Panacea Hospital on 4-5-2010. Dr.Anand Kumar conducted emergency exploratory Laporatomy in the Panacea Hospital and closure of sigmoid perforation and diversion ileostomy and she was treated in ICU and on ventilation, and administered various medicines namely antibiotics, antacids, analgesic and other supportive drugs and as a result of the exploratory Laporatomy the feacal outputs are collected in the right side of the stomach. The discharge summary issued by the Panacea Hospital produced by the complainant makes it clear that at Trupti Nursing Home when the complainant was re-admitted on 3-5-2010 she was treated for peritonitis. The OPs no.1 and 2 have not explained either in their version or during the course of their evidence before the Forum, as to why they treated the complainant on 2-5-2010 for peritonitis when she was readmitted, if really, the complainant had been discharged on 4-5-2010 from the hospital of OP no.1 in a healthy condition, there was no occasion for OPs to give treatment for peritonitis, when the complainant was readmitted to the hospital of OP no.1. The act of the OP no.1 in treating the complainant for peritonitis, when she was readmitted on 3-5-2010 makes it abundantly clear that, there was a mistake committed by the OPs no.1 and 2 while conducting the cystectomy on 29-4-2010 and because of it, she was having problem of peritonitis and except this, no other conclusion can be arrived at by this forum. The moment, complainant was shifted to the Panacea Hospital, i.e. on 4-5-2010, the investigation was conducted by doing scanning through Kanva Diagnostic Service Pvt. Ltd and got confirmed that there was a tear on the colon and immediately, Dr.Anand Kumar conducted explorative Laparotomy, closure of sigmoid perforation and diversion Iliostomy. The complainant has deposed during the course of evidence assertively that on account of negligence of OPs no.1 and 2, she had tear on the colon and they are responsible for it. The said evidence of the complainant that, she had tear on the colon stands corroborated by evidence of PW-2, discharge and other records of the Panacea Hospital. It is worthy to be noted that, in the discharge summary of Trupti Nursing Home, there is no mention made that the complainant had ulcer near the colon. Besides in the cross examination of the complainant and PW-2, no specific suggestion were confronted by the OPs, disputing the negligence of OPs no.1 and 2 while doing operation in the hospital of OP no.1 on the fateful day. The entire cross examination of complainant and PW-2 is silent on this vital aspect.
16. So from the evidence of PW1 and PW-2, copies of discharge summary of Trupti Nursing Home, Discharge summary of Panacea Hospital and other records of the said hospital and report of Karnataka Medical Council produced by the complainant, one can safely come to conclusion that, the OPs no.1 and 2 were negligent while conducting Laparoscopic operation of the complainant on 29-4-2010 and on account of their negligence, there was a tear on the colon, and as a result of it, feacus has spread to stomach and other areas, resulting into septicemia.
17. At this stage, let us have a look at the cursory glance at the oral and relevant documents of the OPs no.1 and 2. Dr.Latha Inamdar who being the OP no.1 has stated in her affidavit that, she has conducted Hysterectomy procedure for the complainant about five years ago and the complainant visited her complaining of pain in the abdomen, and after proper examination and investigation, she advised the complainant to undergo laparoscopic surgery for removal of ovarian cyst and then she called the OP no.2 who is their visiting surgeon and a laparoscopic expert and she has noted the previous surgeries of the complainant and she was administered general anesthesia by Dr.Kasthuri.S.A. The necessary laparoscopic cystectomy and adheseolysis was done with all due care and caution. As a matter of standard procedure thorough irrigation and suctioning of the abdomen was done for ruling out incidental damage. After the laparoscopic surgery, she was shifted to ICU and thereafter shifted to ward, she did not have any abdominal distention and in fact she passed stools during this time which are indicatives of a stable recovery. She was discharged on 2-5-2010 in a stable condition and she was extended all good care as per the accepted standards of care. The complainant was readmitted on 3-5-2010 when she complained of acute pain in the abdomen, and she was administered pain killers and other supportive drugs. As peritonitis was diagnosed, Ryle’s tube was passed and general surgeon Dr.Surendra.K.S was called to attend her and also OP no.2. However, because of the complainant had tachycardia and breathlessness, she was shifted to Panacea Hospital under the care of Dr.Sumathi Kumar. The complainant has not caused any notice to her and no allegations of lack of skill or lack of hygiene or lack of examinations are made against her, which are essential to allege and sustain a complaint of deficiency of service. The report obtained from the Karnataka Medical council cannot be any evidence in favour of the complainant as no opportunity was offered to them. Assertions of the complainant about the expenditure made towards hospital and medical bills and other expenses are all false and there is no lack of care or caution as asserted in the complaint and there is no complaint of negligence against them. So they are not liable to pay damages, so the present complaint be dismissed.
18. In the entire evidence, the OP no.1 did not explain, how the problem of peritonitis started, when the complainant was readmitted to her hospital on 3-5-2010, and who has responsible for the Sigmoid Colon aberration/perforation, as there is only one day gap between the date of discharge of the complainant from the hospital of OP no.1, and the date of readmission to the hospital of OP no.1 The entire evidence of the OP no.1 is totally silent on this aspect, for the reason best known to OP no.1.
19. One Dr.Vijay Kumar who being the OP no.2 has filed his affidavit by way of evidence and he stated that, on 29-4-2010 he did Laparoscopic Ovarian Cystectomy of the complainant by giving Anaesthesia. After the surgery, she was kept in ICU and after 24 hours, she was shifted to ward and she did not have any abdominal distention and she passed stools, which is indicatives of a stable recovery and she was discharged on 2-5-2010 in a stable condition, and she was extended all good care as per the accepted standards of care. The complainant was readmitted to Nursing Home of OP no.1 on 3-5-2010 with complaints of acute pain in the abdomen. The clinical examination showed abdomen tenderness, distention and rigidity and she was administered pain killers, antibiotics and with other supportive treatment. As perotinitis was diagnosed, Ryle’s tube was passed and general surgeon was called and he also visited the hospital of OP no.1 on that day. Erect abdomen X-ray and abdomen scan were done, since the complainant had tachycardia and breathlessness, she was shifted to Panacea Hospital. No allegations of lack of skill or lack of hygiene or lack of examination are made against them, which are essential to allege deficiency of service. The report of Karnataka Medical Council cannot be any evidence in favour of the complainant, as no opportunity is afforded to them and the assertions of the complainant regarding the expenditure made towards hospital and medicals bills and other expenses are all false. They took every care and caution in attending the complainant. The complainant has never made any complaints of negligence against them and they are not liable to pay any damages, so the present complaint be dismissed.
20. Document no.1 of the OPs is the copy of Inpatient record of Panacea hospital issued in the name of complainant, wherein the date of admission was mentioned as 4-5-2010, and she was referred by OP no.1. Document no.2 is the copy of the letter of OP no.1 addressed to the Panacea Hospital dated 4-5-2010 stating that, the complainant has developed respiratory problem with Hypertension and abdominal distention and kindly do the needful. Document no.3 is the copy of operation record of Panacea Hospital wherein it is stated in pre operative diagnosis column, as peritonitis and exploratory Laparotomy diversion and sigmoid perforation. The OPs have produced the copy of case sheet and treatment sheet of Trupti Nursing Home and these records of OPs do not throw any light on the point of taking care and caution at the time of doing surgery of the complainant on 29-4-2010.
21. Testimonies of OPs no.1 and 2 that they took maximum care and caution in conducting the operation of complainant and there is no negligence or deficiency of service on their part are not corroborated by any believable documentary evidence. Taking the oral and documentary evidence of the complainant and compare the same with the material evidence of the OPs, it is vivid and clear that, the oral and documentary evidence of the complainant are more believable trustworthy and acted upon than the material evidence of the OPs. As par as the allegations of the complainant made in her further evidence affidavit with regard to the removal of both ovaries by the OPs is concerned, there is no specific averment made in the present complaint. The complainant has asserted in the present complaint that, while doing laparoscopic operation on 29-4-2010, the OPs no.1 and 2 have caused injury to her colon negligently and for that the complainant has prayed for compensation in the complaint and not for removal of both ovaries. So the allegations of complainant made in the further evidence affidavit in relation to removal of both ovaries negligently by the OPs cannot be taken into consideration, in view of paucity of averment of the complaint.
22. Viewing the case of the complainant, on the back ground of the oral and documentary evidence of the complainant placed before the forum, we are of the considered opinion that, the complainant who knocks the doors of the forum seeking relief has unfolded her case by placing clear and tangible material evidence that, the OPs no.1 and 2 did not exercise due diligence as is excepted in the ordinary course and have committed the negligence and deficiency of service while conducting the Laparoscopic surgery on her on 29-4-2010 and have caused the injury to the colon by their negligence and put her to the risk of death as a consequence of septicemia, and accordingly, we answer this point in a affirmative.
23. During the course of cross examination, the complainant has stated that, she has Mediclaim policy, and Insurance Company has paid her entire operation charges of the hospital of the OP no.1 and she volunteered in the cross examination that, some portion of operation chargers of the Panacea Hospital were paid to her by the Insurance company. But the complainant has not produced any documentary evidence to show how much amount was paid to the Panacea Hospital by her insurance company. The said evidence of the complainant goes to show that, the insurance company of the complainant has looked after the operation charges of the complainant. The complainant has not produced any scrap of paper to show before the forum that, how much amount was paid to Lab. Technician per month, so also the complainant has failed to establish with documentary evidence as to how much income she was getting per month from her laboratory. In the absence of producing any believable documentary evidence, the complainant is disentitled to claim the said charges.
24. In view of affirmative finding on point no.1 and looking to the nature of deficiency of service on the part of OPs no.1 and 2 in conducting operation on the complainant on the fateful day, we feel it proper to award nominal sum of Rs.5.00 lakhs to the complainant and not Rs.15,57,000=00 as prayed in the complaint, and accordingly, the OPs no.1 and 2 are directed to pay Rs.5,00,000=00 to the complainant towards mental agony, pain, discomfort and damages jointly and severally with 9% interest per annum on the said amount from the date of the complaint within 30 days from the date of this order, failing which, the OPs no.1 and 2 shall pay the said amount to the complainant with 10% interest per annum on the said amount from the date of complaint to till the date of realization. The OPs no.1 and 2 are further directed to pay Rs.5,000=00 to the complainant towards cost of litigation, and accordingly, we answer this point. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is partly allowed.
The OPs no.1 and 2 are directed to pay a sum of Rs.5,00,000=00 (Rs.Five Lakhs only) to the complainant as a compensation, alongwith 9% interest per annum on the said amount from the date of the complaint within 30 days of this order, failing which, the OPs no.1 and 2 shall pay the said amount to the complainant with 10% interest per annum from the date of the complaint to till the date of realization.
The OPs no.1 and 2 are further directed to pay Rs.5,000=00 (Rs.Five thousand only) to the complainant towards cost of litigation.
The OPs no.1 and 2 are jointly and severally liable to pay the said amount to the complainant.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 9th day of January 2013.
MEMBER PRESIDENT
