BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.1277/2008 AGAINST C.C.No.979/2005, DISTRICT FORUM-1,Hyderabad.
Between:
A.Padmavathi,
W/o.A.Laxminarayana,
Aged about 43 years, Occ:Housewife,
R/o.H.No.12-7-102, Musapet, Kukatpally,
R.R.District. …Appellant/
Complainant
And
1.Dr.M.Vijayendra,
S/o.not known to complainant,
Aged about 60 years, Occ:Doctor,
Consultant Surgeon of Medinova Diagnostic Services,
Premises NO.6-3-652, Somajiguda , Hyderabad
R/o.H.No.11-5-334/1, Red Hills ,
Near Nilofar Hospital,
Hyderabad -500 004.
2. Heritage Hospital ,
Rep. by its Managing Director,
6-3-655/12, Somjiguda, Hyderabad. … Respondents/
Opp.parties
Counsel for the Appellant : M/s. K.Rajeev Reddy
Counsel for the Respondents: Mr.Dinesh Chandra M.Shah-R1
Mr.Mustafa Kamal-R2
QUORUM:THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT,
AND
SMT.M.SHREESHA, HON’BLE MEMBER
MONDAY, THE TWENTIETH DAY OF DECEMBER,
TWO THOUSAND TEN.
Oral Order (Per Smt.M.Shreesha, Hon’ble Member)
*****
Aggrieved by the order in C.C.No.979/05 on the file of District Forum-1, Hyderabad , the complainant preferred this appeal.
The brief facts as set out in the complaint are that the complainant consulted Dr.Vasundara at Kukatpally as she was suffering with abdominal pain and it was diagnosed that she was suffering from bulky antervarted uterus, cystic area in the uterine servex S/. Nabothian Follicle and thereafter she consulted Dr.Malarkudi, Consultant Gynecologist of BBR Multi Specialty Hospital. As the abdominal pain was recurring, the complainant consulted opp.party no.1 for treatment and on his instructions she joined in the hospital of opp.party no.2 for Hysterectomy operation. Opp.parties 1 & 2 have conducted the said operation on the complainant on 24.7.2004 she was discharged on 2.8.2004 . After a period of one week as the complainant again suffered abdominal pain and urinary obstruction, she immediately got admitted in Sai Sadan Hospital of Moosapet wherein the doctors after careful examination opined that the operation was not properly conducted and advised to approach where the operation was conducted earlier. The complainant again readmitted in opp.party no.2 hospital for further treatment, but they have referred her to NIMS hospital for an effective treatment. The complainant joined in the NIMS Hospital on 11.8.2004 wherein it was diagnosed that the complainant had suffered with Post TAH with LT Urteric Injury and her entire body was septamised. At NIMS hospital operation was conducted on 17.8.2004 and she was discharged on 8.9.2004 and in furtherance of treatment NIMS hospital doctors have again conducted surgery on 9.12.2004 and the doctors of NIMS hospital also confirmed that the surgery at the first instance was not properly conducted. Due to ureteric injury to the bladder, there is a leakage of urine in body and entire body was got septamised with swelling due to which the complainant had incurred heavy expenditure to take treatment at NIMS Hospital for longer period and got it cured. The complainant submits that due to negligence of opp.parties in conducting operation and not giving post operative treatment she had suffered physically and mentally. The complainant got issued a legal notice dt.18.8.2005 to the opp.parties through registered post and under certificate of posting for which the opp.party no.1 issued reply dt.2.9.2005 with false and baseless allegations. Hence the complaint seeking direction to the opposite parties to pay a sum of Rs.18 lakhs towards compensation together with interest @ 24% p.a. from the date of filing of the complaint till the date of payment and to pay costs of the complaint.
Opp.party no.1 filed counter contending that the complainant has not mentioned the type of treatment she had undergone on the advise of Dr. Vasundhara of Kukatpally and Dr.Malarkudi of BBR Multi Specialty Hospital and why she had discontinued their treatment. The complainant was admitted in the Heritage Hospital and her condition revealed that she was suffering from severe anemia, acute abdominal pain and severe bleeding resulting in low platelet count i.e. Thrombocytopenea. The complainant and her husband were informed of her condition and advised operation could be performed only after her condition stabilized with reference to her platelet count and she was administered 7 units of platelet concentrate to bring up the platelet count and the complainant responded positively and her condition stabilized. The complainant and her husband gave high risk consent to perform the surgery and both signed the necessary papers to this effect. On 24.7.2004 opp.party no.1 conducted operation and its was successful and she remained as inpatient till 2.8.2004 and during post operative period she was given required treatment. The complainant was advised to consult Hematologist at NIMS Hospital regarding Thrombocytopenia. The complainant visited the Heritage Hospital on 10.8.2004 and was examined and as she was suffering from Choleystites Ascites (Gall Stone) she was given treatment to relieve pain and was advised to go to NIMS Hospital where Laparoscopy facilities were available. The complainant stated that he joined in NIMS Hospital on 11.8.2004 and underwent operation on 17.8.2004 and was discharged on 8.9.2004 and underwent another operation on 9.12.2004 but the nature of the operations is not mentioned. The second operation at NIMS Hospital was conducted after 3 months 22 days and hence the allegation that she was suffering with Septicemia at the time she first joined NIMS Hospital is evidently incorrect. The doctors at NIMS would not have taken the decision to conduct operation had there been any sign of Septicemia. The opp.party submits that there is no negligence on his behalf and prayed for dismissal of the complaint.
Opp.party no.2 filed counter admitting the averments as stated in the counter of opp.party no.1 and stated that the surgery conducted at opp.party no.2 hospital was successful and the post operative period of 10 days was uneventful and the complainant was on normal diet and her condition was stable and there was no obstruction in passing urine and this opp.party cannot be held liable for development that had occurred more than two week after the surgery and the complainant joined other hospitals. Opposite party prayed for dismissal of the complaint with costs .
The District Forum based on the evidence adduced i.e. Exs.A1 to A14, Ex.B1 and Exs.C1 and C2 dismissed the complaint without costs.
Aggrieved by the said order the complainant preferred this appeal.
The point that fall for consideration is that whether there is any negligence on behalf of the opp.parties while conducting total abdominal histerectormy (ATH) on the patient. ?
The second point that falls for consideration is whether there was any injury while performing the operation which led to septicemia ?
It is the complainant’s case that one Dr.Vasundhara diagnosed her as having bulky antervarted uterus cystic area in the uterine servex S/. Nabothian Follicle. Thereafter the complainant consulted Dr.Malarkudi , Gynecologist at BBR Multi Specialty Hospital and thereafter approached opp.party no.1 for treatment on whose suggestion she joined in the hospital of opp.party no.2 and both the opp.parties conducted total abdominal hysterectomy operation on 24.7.04 and she was discharged on 2.8.04. After one week she suffered again abdominal pain and urinary obstruction and she was admitted in Sai Sadan Hospital as evidenced under Ex.A5. The learned counsel for appellant/complainant contended that the complainant again readmitted in opp.party no. 2 hospital for further treatment but they advised the patient to go to NIMS on 11.8.04. The patient suffered from Post TAH with LT Ureteric Injury and the entire body had septicemia. She was operated on 17.8.2004 and was discharged on 8.9.2004 and was further operated on 9.12.04. The learned counsel for the appellant/complainant contended that it was only due to the negligence of opp.parties 1 & 2 the patient had to undergo subsequent operation at NIMS which is evidenced under Exs.A6 & A7.
It is the case of respondent/opp.party no.1 that the complainant was admitted in opp.party no.2 hospital on 24.7.04 complaining of abdominal pain and bleeding and she was anemic with low platelet count and 7 units of platelets were administered and her condition improved and hysterectomy operation was conducted. The operation was successful and she was discharged on 2.8.04. There were no post operative complications and she was asked to consult hematologist at NIMS. She once again visited opp.party no.2 hospital on 10.8.04 and she was given necessary treatment. She was suffering from stones in gall bladder and she was advised to undergo laparoscopy at NIMS and that if she was suffering from septicemia the NIMS doctors would not have proceeded with the surgery and that there is no negligence whatsoever on their behalf.
We observe from the record that the complainant had examined a doctor by name Dr.M.Ravinder Reddy in support of his case(PW.2) . Opp.party no.2 examined RW.1,2 & 3 i.e. O.P.1 doctor, hospital manager and anaesthetist. Exs.C1 and C2 are the medical records of NIMS Hospital which are called for by the District Forum.
A brief perusal of the record i.e. Exs.B1 & B2 shows that the patient was anemic and had thrombocytopenia and her platelet count improved and she was operated for TAH. Her consent was taken and her platelet count was repeatedly checked and as on date of discharge sutures were removed on 2.8.04 and the progress record of opp.pary no.2 hospital shows that she was re-admitted with fever for 3 days and retention of urine since 4 days and catherisation was done. The progress record is dated 11.8.2004, towards the end the doctor prescribed I.V. fluids and pantodacs I.V., every 8 hours. Ex.C1 which is the NIMS Hospital Discharge Summary shows the investigations done from 11.8.2004 onwards which shows that her platelet count and hemoglobin were in normal limits evidencing that the patient was not anemic any more. Their tests were repeated on 19.8.2004, 20.8.04 21.8.04, 22.8.04, 24.8.04,25. 25.08.04, 26.8.04 where she was diagnosed as having normal hemoglobin and platelet counts and as on 26.8.04 she has mild thrombocytopenia. The culture and sensitivity reports on different dates in the medical record shows the development of staphylococci. These culture reports are dated 19.8.2004 onwards. The culture report on 19.8.2004 i.e. page no.32 of the NIMS record shows that there was growth enterococci which shows that there was an infection. On 23.8.04 the culture report showed klebsiella pneumonia.
Ex.A6 is the discharge record of NIMS dt.11.8.04. Ex.A6 evidences that there was contrast leak into the peritoneal cavity seen at SI.joint .This evidences that there was a leak which led to the patient going into septicemic condition. In the admission summary it is written as follows:
“Known case of DUB underwent hysterectomy at some pvt. Hosp. on 24/07/2004. Developed thrombocytopenia and abdominal distension and was referred to NIMS . Ureteric leak was suspected and was taken up for ureteric stent placement, intraoperatively developed hypotension, tachycardia and pulmonary edema shifted to RICU on 17/08/04”
In Ex.C1 and C2 i.e. the hospital record of NIMS hospital the first page of which is the discharge record dt.8.12.04 the date of discharge being 19.12.-04 clearly shows that it is a known case of LT.lower ureteric injury following abdominal hysterectomy for which stenting was done. Drainage study showed stricture at the site of the injury with no contrast drainage and the stunt was reinstated and planned for reconstruction. Post operative course was uneventful and discharged with periuretharal cathedral
We observe from the record that the discharge summary of NIMS clearly states that there was a leak and stent was put in whereas the hospital record of O.Ps 1 and 2 i.e. Ex.A4 does not state anywhere that at the time of discharge the patient was suffering from leakage in urinary bladder. It is clear from the culture reports of NIMS that she was suffering from infection and sepsis and this sepsis was also diagnosed by NIMS doctors as evidenced under Exs.C1 and C2 and also discharge summary Exs.A6 and A7. It is for opp.party no.1 and 2 to explain as to how the patient developed sepsis and was again readmitted in their hospital with retention of urine within a few days after her discharge from their hospital on 2.8.2004. The doctors notes as on date of readmission is undated though on last sheet it was given as 11.8.2004 and the patient had immediately joined NIMS and as per Exs.A6 and A7 dt.11.8.04 which shows that ureteric leak was suspected and she was taken for ureteric stent placement.
Opp.party no.1 doctor in his deposition as RW1 stated that he had informed the patient of the high risk involvement because of preexisting thrombocytopenic status of the patient. At this juncture we note that the doctor had taken care of the platelet count and then only performed the surgery. The doctor in his deposition talks only of the precautions taken with respect to thrombocytopenia but he is completely silent about the leakage of the urine. Ureteric injury is a common complication after hysterectomy operation which is admitted in his deposition but he does not state anywhere as to how the patient was discharged without post operatively checking for any such leakage or rectifying it. There is no material on record to substantiate the contention of opp.party no.1 that the ureteric injury is because of high B.P. When the subsequent record clearly shows that there was a ureteric leak and this is dated 15 days after the date of discharge it is for opp.parties 1 & 2 to explain as to how they discharged the patient with post operative complications. We rely on the judgement of the Apex Court in SAVITA GARG (SMT) v. DIRECTOR, NATIONAL HEART INSTITUTE where in it is stated as follows:
‘when a prima facie case is established, it is the duty of the opposite parties to prove their case, since it is only the opposite parties who are aware of the exact line of treatment that has been given to the patient. It was also held by the Apex Court that once a claim petition is filed and the complainant has successfully discharged the initial burden that the hospital/clinic/doctor was negligent and that as a result of such negligence, the patient died, then in that case, the burden lies on the hospital and the doctor concerned, who treated the patient, to show that there was no negligence involved in the treatment..
We also observe from the record that the words ‘high risk’ in the Consent Form is added ‘in ink’. The Anesthetist and marketing executive of opp.party no.2 hospital who deposed before the Fora stated that there was no procedure of doctors signing on the Consent Form. It is pertinent to note that the risk of leakage of urine in hysterectomy operation and the prognosis thereafter has not been explained to the patient. We rely on the judgement of Apex Court in Samira Kohli Vs. Dr. Prabha Manchanda & Another reported in (2008) 2 SCC wherein the Hon’ble Supreme Court summarised the principles relating to ‘consent’ as follows :
(i) A doctor has to seek and secure the consent of the patient before commencing a 'treatment' (the term 'treatment' includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
(ii) The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
From this judgement it is clear that the prognosis and complications and risks involved are to be explained to the patient before taking such consent. The complainant on his part examined PW.2 as his expert witness who is a Forensic Medicine expert who opined that there was negligence on behalf opp.parties 1 & 2 while conducting surgery and giving post operative treatment. The expert submitted in his cross examination that he conducts postmortems on various medico legal cases. We observe that the case sheet states that the consent for TAH was taken though the complications and risks and the prognosis of subsequent leakage was not explained. We rely on the judgement of Sabita Garg and we hold that it is for opp.parties 1 & 2 to explain as to how the patient suffered from ureteric leakage a few days prior to 11.8.2004 subsequent to her discharge on 2.8.2004 and ultimately ended in septicemia. The hospital records of NIMS substantiates this. Taking into consideration the evidence on record and the aforementioned judgements we are of the considered view that the opp.parties 1 & 2 are jointly and severally liable for not rectifying the post operative complication. We hold that both doctor, opp.party no.1 and Hospital, opp.party no.2 are negligent with respect to this aspect only for which they are liable to pay an amount of Rs.2 lakhs towards medical expenses, compensation for mental agony and damages. Taking into consideration that the complainant is a house wife and not an earning member and also that there is no substantial ground for opp.parties 1 & 2 to pay an amount of Rs.18 lakhs prayed for by the complainant, we disallow that excessive amount.
In the result this appeal is allowed in part and the order of Dist. Forum is set aside and opp.parties 1 & 2 are liable jointly and severally to pay an amount of Rs.2 lakhs to the complainant which is inclusive of medical expenses, compensation and damages. We also award costs of Rs.3000/-. Time for compliance four weeks.
PRESIDENT
MEMBER
Dt. 20.12.2010.
Pm*
