SMT. RAVI SUSHA: PRESIDENT

            Complainant has filed this complaint  for getting an order directing opposite party No.1 to pay Rs. 13,00,000/- with interest and to pay Rs.6,75,000/-with interest by opposite parties 2 and 3 to the complainant severe physical impairment and prolonged medical treatment and mental and physical pain etc. together with Rs.25,000/- towards cost of the proceedings of the complaint.

            The facts are that in the year 2012, as complainant was suffering from acute back pain and bleeding coupled with abdominal discomforts, she consulted OP No.1 and diagnosed her disease as Endometrial polyp and advised of some other gynecologists the complainant consented to undergo total laparoscopic hysterectomy and she was there after admitted to the OP NO.3 hospital on 19/10/2012, for conducting total laparoscopic hysterectomy.  Thereafter she was discharged on 23/10/2012.  Complainant submit that since removal of ovaries will cause serious malfunctioning of other glands and organs in the body, the complainant had made it clear that the ovaries should not be removed along with uterus.  In fact OP NO.1 had promised that the ovaries will not be removed but it will be retained.  Complainant submits that on her discharge, she was provided with a discharge summary where in it was mentioned that the ovaries were retained. After discharge she developed body problems like back pain and other discomforts  post-hysterectomy which she believed was caused by the removal of uterus and also suffered suffocation after climbing the stairs and could not climb the steps easily.  She was forced to use inhalers to keep her calm on such occasions and felt extreme hot in her body and her skin started becoming dried up.  On 30/07/2017 complainant was admitted to Tely Medical Centre Thalassery, after she was suffering from fever; headache, and severe back pain, lower abdominal pain and bodily pain.  The doctors advised her to have scan of the abdomen and pelvis.   The complainant further approached the scanning centre of OP No.3 on 07/08/2017  and had undergone scanning.  In the report delivered from there it was diagnosed that ovaries were not seen.  The doctors she consulted clarified that it is under stood that the ovaries were also removed during hysterectomy she was also found suffering from Hyper choic lesion measuring 4m.m. in the upper calyx of left Kidney.  The complainant has come to the knowledge that her ovaries were removed only after this was diagnosed through the scan reports.  The OP No.1 had not informed any such complications during the surgery and had performed the surgery and gone to an extent of removing both the ovaries without the consent of the complainant.  The complainant submits that OP No.2 and 3 had failed in their duty to give proper instruction to the OP NO.1 to perform her duty in due care and caution and as per medical rules and ethics.  The complainant thereafter on 16/08/2017 sent a lawyer notice to the OPs informing them individually about the pathetic situation of the complainant, and her sufferings and hardships for which all of them send replies denying their deficiency in their services.  The complainant who is an astrologer by profession cannot sit a long period for consultation of her clients due to the acute pain she is suffering.  The present physical and mental condition of the complainant is highly pathetic and pitiable, she cannot even able to perform her marital duties, due to acute back pain.  Now she is under constant medicaments and pain killers to relive her pain and other consequential difficulties.  There was total negligence  on the part of the OPs in rendering Medical service to the complainant, which is deficiency in service in terms of Sec 2(1)(g), Consumer Protection Act, 1986.  Hence the complaint.

            OPs filed version stating that  the complainant consulted the 1^st OP in the year 2012 with complainant of excessive bleeding per vagina and ultra sound scans done on 29/02/2012 and 12/09/2012 were suggestive of endometrial polyp.  Based on clinical symptoms and scan reports, the 1^st OP had discussed with complainant about her diagnosed disease condition and required surgical procedure namely total laparoscopic hysterectomy.  The complainant voluntarily agreed to undergo surgery and got admitted at the 3^rd OPO hospital on 19/10/2012.  Under all aseptic care and precautions the 1^st OP conducted total laparoscopic hysterectomy under general anesthesia.  Intra operatively both ovaries appeared normal and hence retained and only uterus was removed and sent for histopathological examination.  The complainant was also informed that both ovaries were retained and the same was also specifically noted in the discharge summary.  The complainant did not develop any problem post operatively and she remained asymptomatic and her diagnosed problems in 2017 were unrelated to hysterectomy as it is well evident from ultra sound scan done on 07/08/2017.  The 1^st OP had retained both ovaries intra operatively and it is well evident from the histopathology report.  The ultra sound finding of a Radiologist reporting non visualization of ovaries during radiological evaluation is not foolproof and conclusive evidence of its absence.  Non visualization during sonological evaluation does not imply its absence in the light of medically accepted fact that ovaries are less likely to be seen following hysterectomy because of the loss of normal anatomic landmarks.  It is further stated that after hysterectomy ovaries are hardly detected due to various medically accepted reasons.  Hence the complaint framed on the basis of an ultra sound scan report 5 years after hysterectomy mentioning uterus and adnexa not seen is misguided and hence not sustainable.  There was no negligence  or deficiency in service on the part of OPs.  Since ovaries were preserved during hysterectomy it will remain in body unless removed subsequently and non visualization in ultrasonography cannot be accepted as a conclusive and reliable proof of its absence.

Further submitted that1st OP is having qualification of MBBS, DGO, DNP with experience of 13 years as a consultant gynecologist and the 3^rd OP hospital is providing service of qualified and experienced medical staff and the was no deficiency or shortcoming in the nature of manner of performance of service provided in the complaint.  Hence prayed for the dismissal of complaint.

            The complainant in proof her case filed her affidavit evidence and  got the documents marked as Ext.A1 to A13,  while on the side of OPs, OP No.1 filed her affidavit evidence and marked Ext.B1.  On the side of OPs, one of the member in the medical Board, constituted as per the direction of this commission for examining the complainant and submitted report Ext.X1, Dr. Simi Kurian, Associate professor, Department of obstetric Gynecology,  GMC Kannur was examined as a witness.

            After that both learned counsels of parties made oral submission and also filed their respective argument note with judgment of Apex Court.  The learned counsel of OPs further submitted medical text book discussing about ‘Diagnostic Ultra Sound’ by Carol M Rumack and Deborah Levine and speroffs clinical Gynecologic Endocrinology and infertility for reference.

            We have heard the learned counsel for the complainant and learned counsel of OPs and carefully perused the medical records available before us and also medical books submitted.

            The specific allegations in the complaint are that OP NO.1 cheated the complainant by removing her ovaries without her consent and knowledge during total laparoscopic hysterectomy conducted at OP NO.3 hospital on 19/10/2012.  Further the removal of ovaries was not mentioned in the discharge summary.  Complainant further alleged that due to the removal of ovaries, she developed body problems like back pain and other discomforts like suffocation after climbing the stairs,  felt extreme hot in her body and her skin started becoming dried up.   Complainant submitted that she came to know about the removal of ovaries on 07/08/2017, when she had undergone scanning. It is stated that in the scan report the ovaries were not seen and on consultation with doctors, it is under stood that the ovaries were also removed by OP No.1 during hysterectomy conducted in 2012.  Complainant relied Ext.A3 Ultrasonography report dated 07/08/2017 done at Indira Gandhi co-operative hospital and Ext.A6 ultrasonography of Abdomen taken from Justice K S Hdge Charitable Hospital dated 24/01/2018.  Complainant submitted that all the complaint developed on 30/07/2017  as stated in the clinical history of Tely Medical centre, was due to the removal of ovaries during hysterectomy done by OP No.1 in 2012.

            OPs contention is that the complainant’s allegations regarding the removal of ovaries were based solely on her assumptions and not supported by any expert opinion without scientific evidence to support the alleged removal of ovaries; it cannot be accepted as true.  OPs submitted that none of the doctors, who told her about the removal of ovaries, were examined by the complainant. OP’s case is that OP No.1 is having qualifications of MBBS, DGO, and DNB with 13 years of experience as a consultant which has not been disputed by the complainant.  According to OP1 Intra operatively both ovaries appeared normal and hence retained and only uterus was removed with the informed consent of the complainant.  Further stated that after surgery, the uterus was sent for histopathological examination  and the histopathology report shows that the total lap hysterectomy specimen sent for histopathology reveals that  only uterus was removed and confirmed the diagnosis of endometrial polyp.  It is also submitted that  the complainant did not develop any problem post operatively and her  diagnosed problems in Ext.A1 were unrelated  to hysterectomy as it is well evident from Ext.A3 scan report dated 07/08/2017.  OPs contended that             non-visualization of ovaries in Ext.A3 is not  fool proof and conclusive evidence of its absence.  Further submitted that scan result cannot be 100% conclusive.  OPs have produced medical text book in support of their claims that after hysterectomy, ovaries are hardly detected due to various medically accepted reasons that

1) Only 41% of postmenopausal ovaries are visible by ultrasound examination because of its smaller size and lack of follicles.2) Anatomically the ovaries may present behind the bowel and gas in the bowel will pose difficulty in visualization. 3) There is a chance for ovaries trapped in adhesions which is a usual manifestation after surgery. 4)  Ovaries will undergo early atrophy following hysterectomy ( the  USG was done in the complainant’s case after 5 years) especially since the complainant is aged 45 years prone to physiological atrophic changes. 5)  There will be changes in normal anatomic presentation of reproductive organ after hysterectomy and chance of visualization of retaining adnexa is less after hysterectomy.

            OPs further submitted that complainant had given consent for removal of her uterus and only uterus was removed.  During cross examination of complainant, she deposed that she has no complaint about removal of her uterus.  Though it has been alleged by complainant that in the ultrasonograpgy of abdomen dated 24/01/2018 taken at Justice K S Hedge Hospital Ext.A6 reveals that ‘no ovaries was visualized’ means ovaries was absent and it was removed along with uterus while conducting total hysterectomy done by OP No.1 without her knowledge and consent, no medical literature or experts opinion through examining treating doctors as alleged by complainant has been cited or furnished by the complainant in support of this allegation.  Hence this allegation has to be rejected.  It is also difficult to accept the allegation of complainant that the fatigue, acute body pain, head ache and asthma was due to hormonal imbalance    caused by the removal of ovaries     there is no medical opinion or literature in support of this contention.  Further though OP NO.1 was cross-examined, nothing can be elicited against the contention raised by OP NO.1 in the version.

            In the instant case, the only expert opinion available is of Dw2 Dr. Simi Kurian.  On the testimony of Dw2, it is revealed that the symptoms of complainant mentioned in Ext.X1 was due to Menopausal syndrome.  Further stated that ovaries not visualized.  This is because ovaries have become smaller in size and shrunken.  Further normally after menopause ovaries shrunk after 3 to 4 years of hysterectomy.  Further once an organ is removed the entire part is to be sent for hystopathological examination.  Once the uterus is removed support of the ovary will be lost and it can get attached to the surrounding structures like intestine and abdominal wall.   In such a case it is difficult to visualize ovary in USG examination.  During cross examination Dw2 deposed that the size of the ovary after menopause will be only will be only 1.5 Cm, it will be difficult to visualize in Ultra Sound Scan (A6) normally in 40%  cases shrunken ovaries may be seen but in 60% case it cannot be seen.  The learned counsel of OP submitted a text book ‘Diagnostic Ultra sound’ 4^th edition, in which it is observed that post menopausal ovary- After menopause, the over atrophies and the follicles disappear over the subsequent few years, with the ovary decreasing in size with increasing age.  Because of its smaller size and lack of follicles, the postmenopausal ovary may be difficult to visualize sonographically.  The learned counsel of OP submitted another Medical Textbook discussed about “sexually, aging and menopause” in Speroffs clinical Gynecologic Endocrinology and infertility. In which it is observed that up to 23% of menopausal women are negatively affected by decreased sexual desire. From the above observations, the non visual of ovary in sonography  does not mean that ovary was absent and decrease in sexual desire of the complainant may be due to menopause.

            Here, the question is whether the non-visualized ovaries in USG report, amounts to medical negligence  on the part of OP No.1 and whether  “no ovaries visualized” mentioned in the USG report means ovaries are absent.

            Here the complainant has not produced any medical literature or expert opinion. To establish any of her allegations regarding removal of ovaries by OP NO.1  while conducting total hysterectomy.  On the other hand, OPs have produced Medical literature from   reputed sources and expert opinion in support of their contention on the allegations of the complainant.  In scan report dated 06/04/2023 taken from Tamil Nadu Medical service Co.Ltd. observation shows uterus and ovary appears atrophic”.  The correct meaning of the said observation is not proved through medical opinion considering the whole evidence and observation in medical text book.   We are, therefore of the view that there is no medical negligence or deficiency of service on the part of the opposite parties.

            In the result complaint fails and hence it is dismissed.  No order as to cost.

Exts.

A1- Discharge summary Tely medical centre

A2(series)- Sonar Scan Report (2 in Nos.)

A3- Ultra Sonar Scan Report (2 in Nos.)

A4- Discharge summary – Indira Gandhi Co-operative hospital

A5- Histopathology and cytology report

A6- Justice K S Hegde charitable hospital ultra sonography report.

A7 (series)- Discharge summary – Indira Gandhi Co-operative hospital dated 05/11/2012, 10/11/2012 (2  in numbers)

A8- Indira Gandhi Co-operative hospital report dated 07/08/2017

A9- Tellichery  Co-operative hospital whole body CT Scan report

A10- Royal Malabar hospital OP registration dated 09/11/2017

A11- Prescription dated 17/02/2020

A12- Family health centre Kadirur dated 06/10/2021

A13-Prescription Tely Medical Centre Ltd. dated 19/10/2021

B1-Inpatient record

X1-Medical Board report

Pw1-Complainant

Dw1-OP1

Dw2- Dr.Simi Kurian- Witness of OP

      Sd/                                                                    Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar