Kerala

Idukki

CC/59/2016

Manju Anil - Complainant(s)

Versus

Dr.Merclet - Opp.Party(s)

26 Jul 2019

ORDER

DATE OF FILING : 16.2.2016

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 26^th day of July, 2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT. ASAMOL. P MEMBER

CC NO.59/2016

Between

Complainant : Manju Anil,

Kottayil House,

Nariyampara P.O.,

Kattappana, Idukki.

(By Adv: K.M. Sanu)

And

Opposite Parties : 1. Dr. Mercylet,

St. Johns Hospital,

Kattappana South P.O.,

Idukki.

2. The Director,

St. Johns Hospital,

Kattappana South P.O.,

Idukki.

(Both by Adv: Johnson Joseph)

 

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

 

Case of the complainant is that :

 

The complainant approached the opposite party hospital on 31.8.2015 and admitted there for her 2^nd delivery. Her first delivery was caesarean and was in the same hospital. From the beginning stage of her pregnancy, she was consulted with the 1^st opposite party in the 2^nd opposite party hospital. On 1.9.2015, the complainant was admitted in the labour room and given 5 injection instead of 3 injection as normal for inducing pain. Due to the fluid loss followed by the injection, the delivery was delayed and the movements of the baby in the womb was decreased. On 2.9.2015, the 1^st opposite party conducted caesarean surgery and within some hours of caesarean, the complainant suffered heavy bleeding and immediately through another surgery, her uterus was removed. When the patient was shifted to the room, from the ICU, she suffered heavy back pain and this was informed to the doctor, she

(cont....2)

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advised to do hot fomentation. The back pain was persisted after the discharge on 10.9.2015. Moreover there was uncontrolled leak of urine. Hence the complainant consulted the 1^st opposite party again and as per the advice of 1^st opposite party, the complainant consulted the urologist there and after examination, the urologist given some medicines and returned. The urine leakage was stopped due to their medicines, but the back pain and abdominal pain was persisted. Due to the physical ailments, the complainant approached the Amritha hospital on 28.9.2015. After diagnosing the physical condition of the complainant, she was admitted there and USG and CT scan was done. The scan report showed that the ureter tube and kidney were tied accidentally, while the opposite parties conducting hysterectomy and further found that the urine is accumulated in the kidney. Hence the doctors of Amritha hospital immediately conducted laparoscopy surgery and the complainant was there underwent USG guided PCN insertion on 28.9.2015. An amount of Rs.3.5 lakhs was spent for the treatment in Amritha hospital alone. The complainant further averred that all these shortcomings were happened due to the ignorance and lack of care from the part of the opposite parties in conducting hysterectomy. Due to the negligences on the part of the opposite parties, complainant had to suffer a lot both physically and mentally. After discharge from the Amritha hospital, it was advised continuous rest for 6 months. The complainant was an able bodied woman and due to her ill health, she happened to appoint a home nurse and all these were caused heavy financial loss to the complainant and her family.

 

Upon notice, opposite parties entered appearance and filed detailed reply version denying the averments of the complaint. Opposite parties further contended that the complainant was brought to 2^nd opposite party and admitted for her delivery. Since her labour was not progressing, acceleration of labour was started at 10 pm on 1.9.2015 as per protocol and watched uterine contractions in the labour room. The treatment records kept in the 2^nd opposite party as well as the discharge summary issued to the complainant from the hospital shows that her first delivery was normal vaginal delivery. Further no assurance was ever given to the complainant that she would have a 2^nd time normal delivery. No gynaecologist can assure that a particular patient would be able to have normal delivery. During ante-natal period and labour unforeseen situation can arise any time and caesarean either elective or emergency might have necessitated during the process of delivery.

 

Opposite parties further contended that no injection was given to the complainant for inducing pain as alleged. At the same time medicines for pre-induction cervical ripening and labour acceleration was applied which is well

(cont....3)

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documented procedure in strict regard to accepted protocol in the labour management. The injection given were Drotaverine, Buscopan and Epidosin which are given as smooth muscle relaxants to facilitate dilatation of the cervix for delivery. The allegation of fluid loss due to injection is unsustainable. The fluid was let out in a controlled manner by artificial rupture of membranes on the basis of vaginal indications, which is a standard procedure in the management of labour. The indication for emergency caesarean section was planned when the baby showed signs of foetal distress indicated by a sudden drop in foetal heart rate. This was detected promptly as a patient had been close monitoring in the labour room and as the standard intervention an emergency LSCS was done in time. Severe bleeding immediately followed by caesarean delivery happened because of uterine atonicity and not after some hours of delivery as stated in the complaint. The decision to resort to emergency hysterectomy was taken as a timely decision to save life of the patient in a situation where medicines, medical measures including intra-operative blood transfusion failed to control the PPH and the patient was going into haemorrhagic shock due to severe hypotension. The situation was explained to the relative of the patient and with their consent and in consultation with another gynaecologist the 1^st opposite party proceeded with hysterectomy and it was not at all a hasty decision as alleged.

 

The opposite parties further contended that on the complaint of low back pain on 5.9.2015, the urologist saw the patient and conducted an ultrasound study and the patient responded to analgesics and no further steps was taken then. As the patient reported with urinary complaint on review, urologists examined her and on the basis of ultrasound scan report she was given medicines for urinary infection and strongly advised CT urogram and cystogram if the symptoms persisted. The patient did not follow the treatment advice given by the urologists. The 1^st opposite party is well experienced gynaecologist who had performed caesarean and total hysterectomy with utmost care and caution and the surgery was conducted with assistance of another gynaecologist in the presence of urologists. The incidence of ureteric involvement / accidental injury to the ureter is well reported complication in pelvic surgeries and the risk is more likely in emergency procedure like post caesarean hysterectomy. The occurrence of uretero-vaginal fistula cannot be attributed to be due to any negligence on the part of the 1^st opposite party. The allegation that the complainant necessitated continued treatment due to ignorance and lack of care from the part of the 1^st oppostie party is ill motivated. Atonic PPH is known to occur without any pre-existing problem and is almost always unpredictable. The uterus had to be removed to prevent

(cont....4)

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further haemorrhage which would have jeopardized the patient's life. Every step in the management was taken with proper consideration of the circumstances and after due consultation with other specialists. The line of management clearly shows the prompt attention given to all the complaints of the patient with clinical examination and investigations and she was attended by the urologists capable of managing the urinary complaints, but the complainant did no followed the treatment advised by the urologists. In this treatment, there was absolutely no negligence or deficiency in service on the part of the 1^st opposite party. The amount shown as expended for treatment in Amritha hospital and the amount quantified as compensation and cost are highly exaggerated and without any substance and hence it is denied.

 

Evidence adduced by the complainant by way of proof affidavit and documents. Complainant was examined as PW1 and Exts.P1 to P5 marked. Ext.P1 is the discharge summary of the complainant issued by the opposite party hospital. Ext.P2(series) are the test reports of 1^st opposite party hospital. Ext.P3(series) are the treatment bills issued by the opposite party hospital. Ext.P4 is the draft copy of discharge summary of Amritha hospital. Ext.P5(series) are the bills issued by the Amritha hospital. One Dr. George Mathew, Urologists, Department of Urology, Amritha hospital was examined as PW2.

 

From the defence side, 2^nd opposite party, one expert Dr. Suresh Bhutt, Government Medical College, Kottayam are examined as DWs1 and 2 respectively. Ext.R1 is the treatment chart and Ext.R2 copy of relevant pages a medical text book produced and marked. Ext.X1 is the treatment records of the complainant in 2^nd opposite party hospital.

 

Heard both sides.

 

The points that arose for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?

 

The POINT :- We have heard the counsels for both sides and had gone through the documents.

 

The learned counsel for the complainant argued that there was fluid loss due to injections which caused emergency caesarean section, because it reduced the foetal movement. Moreover, severe bleeding immediately followed by the

(cont....5)

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caesarean and sudden and hasty decision for hysterectomy are caused due to the negligence from the part of the 1^st opposite party. Further argued that due to the sudden and immediate hysterectomy caused accidental foetal health of the patient and the patient was totally in a bed ridden condition. All these mishaps are happened due to the wrong decision taken by the 1^st opposite party and it affected badly to the life of the complainant. The 1^st opposite party miserably failed in ruling out of actual ailment of the complainant. This is an utter deficiency in service and gross negligence on the part of the 1^st opposite party. For curing the ailments, the complainant forced to approach the Amritha Hospital, there they found out the actual reason for the health condition of the complainant and by administering proper treatment, they can save the life of the complainant. But for that, the complainant had to suffer much more by way of mental agony and loss of finance and other bodily sufferings. This must be caused only due to the wrong decision taken by the 1^st opposite party, in conducting immediate caesarean and followed by hysterectomy. Hence the decision of the opposite party in the case was utter failure and it amounts to medical negligence and the opposite party is liable to compensate the complainant adequately.

 

On the other hand the learned counsel for the opposite party vehemently argued that the averments in the complaint are ill-formed ill-advised and filed solely for the undue financial advantages. The counsel further argued that, the complainant had a history of full term normal delivery consulted by the 1^st opposite party with her 2^nd delivery. The expected date of confinement was on 12.9.2015 and had regular antenatal consultation with the 1^st opposite party since 23.1.2015. The complainant was brought to the 2^nd opposite party hospital on 31.8.2015 with complaint of labour pain from previous day. She was closely monitored for labour pain and periodically checked vitals and foetal heart rate. Since the labour is not progressing satisfactorily with good contractions, acceleration of labour was started at 10 pm on 1.9.2015 as per protocol. The patient had been under close monitoring of vital signs and FHS and she was noted to have developed foetal heart rate deceleration at 2 pm on 2.9.2015 and hence posted to emergency caesarean section. This is informed to the complainant and her by-standers.

 

The learned counsel further argued that immediately after caesarean, the patient developed post partum haemorrhage and the uterus remained atonic and immediate medical measures and medicines started along with blood transfusion. But in spite of medical management to control PPH, the patient went hypotension and the situation was explained to the by-standers and in

(cont....6)

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consultation with another gynaecologist, emergency hysterectomy was planned as a life saving measure. After obtaining consent from the husband of the patient, opposite party produced with hysterectomy with the help of another gynaecologist in the hospital. Total abdominal hysterectomy was done with utmost care and caution. The post operative management of the patient was under the care and supervision of expert gynaecologist, urologist, anaesthesiologist, cardiologist and pulmonologist attached to the hospital.

 

The counsel further argued that the complainant was discharged on 10.9.2015 in a good condition. On 21.9.2015, the complainant came to the Out Patient Department with the complaint of increased frequency of urination and urge incontinence and consulted the urologist. The clinical examination findings and ultra sound scan abdomen was done which shows PVR 20 ml, normal bladder wall and no ascites. She was prescribed medicines and advised CT urogram and cystogram if incontinence persisted and advised for review after 5 days. On 22.9.2015, one of the complainant's relative came to the urology OP Department and reported that the complainant had abdominal pain left (flank) and vomiting. The urologists advised immediate admission for an emergency CT urogram and cystogram and investigation serum creatinine. But the complainant did no turned up for admission as advised by the urologists and lost further follow up. In the light of the above stated facts, the 1^st opposite party had exercised reasonable care and caution in the treatment of the complainant and absolutely there was no negligence or carelessness on her par at any point of time.

 

On perusing the evidence on record and deposition of witness, it is seen that as per the version of the opposite party as a life saving measure, they decided to conduct immediate caesarean, due to the foetal deceleration. As per the deposition of DW1, the 1^st opposite party, due to the timely decision of conducting caesarean section, they can saved the life of the mother and the child. She further deposed that, it is usual that patient who were underwent caesarean may develop post partum haemorrhage (PPH) and the uterus remain atonic. It is also may happen that, the patient may went in hypotension in such cases emergency hysterectomy is the only life saving measure. In the present case is also such measures are adopted and it is as per the medical protocol. Opposite party further stated that as an abundant precaution, urologists was also called to give special case and ureters and urinary bladder as hysterectomy was done on an emergency life saving measure in post caesarean section due to atonic post partum haemorrhage.

 

(cont....7)

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At this juncture, it is very pertinent to note that, after discharge of the above said surgeries, the patient again came to the opposite party hospital and consulted the urologist with the complaint of increased frequency of urination. She was prescribed some medicines and advised CT urogram and cystogram, if incontinence persisted and advised for review after 5 days. It is also noted that on 5.9.2015, the patient was complained about low back pain and at that time the opposite party given analgesics and advised for hot fomentation.

 

But opposite party never produced any further document to convince the Forum that whether the opposite party advised above said urological test and whether the complainant did not turned up for this tests and did not turned up for admission as advised by the urologist.

 

On perusing the evidence on record, it is seen that the complainant complained about the low back pain, when she was admitted there after the surgery, that is, on 5.9.2015. From the written version, it is seen that on 5.9.2015, the complainant underwent ultra sound study of abdomen (KUB) which showed normal right kidney and a prominent left renal pelvis without any dilatation of the ureter. It is further noted that after the discharge also the complainant suffered severe low back pain and within some days after the discharge, she suffered increased frequency of urination.

 

It is an admitted fact that after the discharge on 10.9.2015, complainant approached the 1^st opposite party hospital, urology department on 21.9.2015 and 22.9.2015, due to heavy low back pain and related ailments. But the opposite party hospital did not care to study the actual reason for the low back pain and other ailments. If the opposite party hospital had attended the difficulties of the complainant in time, they can cure the ailments. But the opposite party hospital's concerned department failed to find out the root cause of the abdominal pain of the complainant. No evidence is produced to convince the Forum to establish their version that they advised CT urogram and cystogram and further advised for admitted treatment. In such a situation, the complainant decided for a better management for relieving her pain and further they approached the Amritha hospital on 22.9.2015.

 

In the reply version and proof affidavit, 1^st opposite party stated repeatedly that she conducted caesarean section and emergency hysterectomy in consultation with another gynaecologist and in the presence of the urologist as an abundant precaution. But the opposite party miserably failed to adduce any evidence to corroborate their version at least to produce the doctors who

(cont....8)

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accompanied her at the time of these surgeries which is discussed above, before the Forum as a witness.

 

The records clearly says that as a last resort, the complainant approached Amritha hospital and on investigation, the doctor of Amritha hospital found that left sided hydroureteronephrosis and kink in ureter in the lower end. In view of this history, she was admitted there for further management. She underwent USG guided PCN insertion on 23.9.2015.

 

On perusing the records, it is seen that the opposite party failed to find out the accidental injury to the ureter. After realising this from the records of the Amritha hospital which was served to the opposite party along with the copy of complainant, the opposite party resisted the finding of Amritha hospital and stated in their reply version that, the incidence of ureteric / accidental injury to the ureter is well reported complication in pelvic surgery and the risk is more likely in emergency procedure like post caesarean hysterectomy. For establishing this view, opposite party produced the relative pages of the book, Campbell and Walsh Urology, which is allegedly the bible is the field of gynaecology. For convincing this fact, opposite party produced an expert in this field and examined him as DW2.

 

At the same time, from the side of the complainant, they produced the doctor who treated the complainant at Amritha hospital and examined him as PW2. Along with him he produced all the treatment records of the complainant and it is marked as Ext.X1. In the box, the witness categorically stated that the patient was admitted and treated there from 22.9.2015 to 12.12.2015 with history of the complaint of left abdominal pain, fever and leakage of urine through vagina. He specifically deposed that (page 2), Fsâ ]cn-tim-[-\-bn left ureter F¶ tube damage Bb-Xmbn IWvs­S¯n AXn-\p-ff NnInÕ sNbvXp.  Patient cure  Bb-Xn-\m discharge sNbvXp.  ap³]v \S-¯nb surgery aqe-amWv  ureter tube damage Bb-Xv. In cross examination, he stated that in 0.3%to 1%, it may cause. From the deposition of witness, it is seen that it may happened in 0.3 to 1 percentage cases. It is known to the expert who handled these cases. In such situation, they must take extra care and caution in conducting such surgery. If it is known to the opposite party, what prevented her or the urology department of opposite party hospital to find it out at the earliest or at the time of the complaint of low back pain and uncontrolled urination. If the opposite party find it out on the date of the complaint of low back pain, that is, on 5.9.2015, the further treatment, medical expenses and pain and sufferings which

(cont....9)

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met out by the complainant can be avoided. Here this fact is pointing out the negligence caused on the part of the opposite parties' failure in detecting a root cause of an ailment.

 

In P.B Desai Vs. State of Maharashtra and another VIII (2013) SLT 51-IV(2014) CCR 37(SC)-2013 15 SCC 481, the Hon'ble Supreme Court has discussed in detail the 'duty to treat' and the 'duty to take care' of a doctor towards his patient and observed that,

“When a physician agrees to attend a patient, there is unwritten contract between the two. The patient entrust himself to the doctor and the doctor agrees to do his best at all times, for the patient. Such doctor-patient contract is almost always an implied contract, except when written informed consent is obtained. While a doctor cannot be forced to treat any person, he/she has certain responsibilities for those whom he/she accepts as patients. Some of the responsibilities may be recapitulated in brief :

(a) to continue to treat except under certain circumstances when doctor can abandon his patient.

(b) to take reasonable care of his patient.

(c ) to exhibit reasonable skill. The degree of skill of a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing and himself. There is an implied contract between the doctor and the patient where the patient is told in affect”

Medicine is not an exact science I shall use my experience and best judgement and you take the risk that I may be wrong. I guarantee nothing”

500. not to undertake any procedure beyond his control. This depends on his qualification, speed trail and experience. The doctor must always ensure that he is reasonably skilled before undertaking any special procedure / treating a complicated case.

In this case, it is obvious that the 1^st opposite party doctor was negligent in conducting the hysterectomy. This caused injury to the ureter. Thereafter when the patient showed some symptoms of ureter damage like low back pain, abdominal pain, leakage of urine etc., the treating doctor such as 1^st opposite party and the urologist of the 2^nd opposite party miserably failed to find out the injury caused to the ureter. The contention of the opposite parties in this case is not supported by any evidence especially in the medical records.

 

Hence we find no reason to disbelieve the final diagnosis of Amritha hospital, when the PW2, the treated doctor opined through Ext.P4 and his deposition. (cont....10)

- 10 -

Under the above circumstances, the Forum found negligence in treating the complainant in the 2^nd opposite party hospital by 1^st opposite party and other related department heads. That caused much mental sufferings and financial loss to the complainant.

 

After considering the foregoing facts and circumstances and also having regard to the contentions raised on both sides, this Forum is of a view that the complainant established his case with sufficient evidence, that the opposite parties are negligent in treating her and that caused much mental sufferings as well as financial loss to the complainant and her family.

 

Hence the complaint allowed. Opposite parties are directed to pay treatment expenses as per Ext.P5 bills to the complainant, that is, Rs.3,11,598/- along with Rs.1 lakh as compensation for the pain and sufferings and Rs.10000/- as litigation cost, within 30 days of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default, till its realisation.

 

Pronounced in the Open Forum on this the 26^th day of July, 2019

 

 

Sd/-

SRI. S. GOPAKUMAR, PRESIDENT

 

 

Sd/-

SMT. ASAMOL. P, MEMBER

 

 

 

 

 

 

 

 

 

 

 

 

 

(cont....11)

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APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 - Manjumol T. B.

PW2 - Dr. George Mathew.

On the side of the Opposite Party :

DW1 - Dr. Mercylet.

DW2 - Dr. Suresh Bhutt.

Exhibits :

On the side of the Complainant :

Ext.P1 - discharge summary of the complainant issued by the opposite

party hospital.

Ext.P2(series) - test reports of 1^st opposite party hospital.

Ext.P3(series) - treatment bills issued by the opposite party hospital.

Ext.P4 - draft copy of discharge summary of Amritha hospital.

Ext.P5(series) - the bills issued by the Amritha hospital.

On the side of the Opposite Party :

Ext.R1 - treatment chart and

Ext.R2 - copy of relevant pages a medical text book.

Ext.X1 - treatment records of the complainant in 2^nd opposite party hospital.

 

 

Forwarded by Order,

 

 

 

SENIOR SUPERINTENDENT