D.O.F. 06.07.2005 D.O.O.04.10.2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri. K. Gopalan : President Smt. K.P. Preethakumari : Member Smt. M.D. Jessy : Member Dated this the 4th day of October, 2010 C.C.No.181/2005 Bindu C.C., W/o. Vivek Nambiar, Advocate, Chathoth House, : Complainant P.O. Chovva,Kannur. (Rep. by Adv.C.K. Rathnakaran) Dr. Suverchala, City Hospital, : Opposite party Kannur. (Rep. by Adv. P. Mahamood) O R D E R Sri. K. Gopalan, President This is a complaint filed under Section 12 of the Consumer Protection Act for an order directing the opposite party to pay an amount of Rs.3,74,000/-as compensation together with the cost of this proceedings. The case of the complainant in nutshell are as follows : Opposite party was the consultant gynecologist of complainant during her second pregnancy. She was taking his advice from time to time and the doctor had given the date of delivery on 28.09.2003. She approached the doctor on 28.09.2003. Doctor after the check up advised her that the head of the fetus is not in correct position and to come as and when she experience any labour pain. She went to the hospital very next day for consultation and after check up she was told that it will take two days for delivery. Thus she was admitted in the hospital on 29.09.2003 and started administrating antibiotics. On 01.10.2003 complainant was taken to the labour room and pain was induced at around 9.45 am and at around 1.20 pm episiotomy was done. She delivered a female baby by way of vacuum extraction. She was discharged after three days on 04.10.2003 but she was continuing with the antibiotics and pain killers which the opposite party had prescribed. After one week complainant started experiencing great pain while passing urine and noticed that she was passing stool without her knowledge. So the complainant approached the opposite party but she was mislead telling her that it is common in normal deliveries and also prescribed high dose of antibiotics and pain killers without diagnosing the complaint. Though consumed whole medicines prescribed by the doctor she did not get any relief. Pain become miserable along with deterioration of health not able to walk, sit, feed or carry her child or was to lie down. Since her mother was an aged women she was compelled to appoint a nurse to look after her. Complainant approached doctor again with unbearable pain but she was misled by telling her that it is common in normal deliveries and it will cure by itself. Hoping recovery she consumed all the medicines but her condition worsened day by day. Complainant again visited the opposite party since there was no relief. After diagnosing opposite party presumed the complaint might be fistula and asked to wait for surgeon to diagnose. The complainant waited for the surgeon but he did not turned up. Complainant forced to consult another surgeon in West Coast Nursing Home, Kannur. After check up the doctor informed sphincter muscles have been ruptured badly and the rectum has to be repaired. But it cannot be done since the episiotomy wound was deeply infected. He advised an operation for Recto Vaginal Fistula but only after the healing of the wound and prescribed some medicines. Complete rest and regular check up also advised. The rectum of the complainant was torn during delivery which was not found out by the opposite party. Opposite party did not even examine the complainant to rule out the tearing of the rectum even though complaints were repeatedly made by the complainant about passing of stool without control. Complainant got admission in the West Coast Nursing Home and underwent the surgery for Recto Vaginal Fistula. After a lapse of four months from the date of operation, the episiotomy wound got almost healed and she was able to discontinue the pain killers. Lawyer notice to opposite party was sent on 02.03.2005 for compensation. Opposite party replied denying the allegations. The complainant spent an amount of Rs.30,000/- as hospital expenses, Rs.12,000/- as nursing expenses, Rs.3000/- for transportation and Rs.7000/- for medicines. Complainant could not properly look after new born baby sharing love and affection; so also unable to attend the needs of her school going son, for which she claims Rs.50,000/-. Complainant is an advocate but forced to give up her job due to treatment during this period of treatment for which she clams Rs.1, 00,000/- as compensation. She has also claimed Rs.1, 00,000/- for her mental agony and sufferings. She had lost all her blissful marital life for which she claims Rs.50, 000/- as compensation. She is also claiming Rs.25, 000/- since she was deprived of all the post delivery care and attention by which she is undergoing the repercussions even now. Hence praying for a favourable order. Pursuant to the notice opposite party entered appearance and filed version denying the main allegations of the complainant. The brief facts of the case of opposite party are as follows: During the course of the second pregnancy complainant came to consult with opposite party during the last period of her pregnancy. The complainant had been under the antenatal care of the opposite party only for the last two months of her pregnancy. An Ultrasound Scan was suggested and the USG report dated 02.08.2003 showed the presentation, fetal movements and all other parameters as normal to have a trial vaginal delivery. Complainant was admitted in hospital on 29.09.2003 following signs of active labour. The complainant had been kept under proper observation and care from the time of admission. Foetal heart rate, B.P. and pulse rate were checked periodically. The case was posted for normal vaginal delivery, as there were no contra indications. Complainant delivered a female baby on 01.10.2003 by vacuum extraction after episiotomy. The delivery was uneventful. Episiotomy got extended involving anal sphincter and rectum and it was immediately sutured. In the post natal period the complainant’s condition remained perfectly uneventful. As part of the treatment following episiotomy, the complainant was strictly advised low residue diet and it was given during her hospital stay. The complainant was also given appropriate antibiotic medicines. She was discharged on 04.10.2003 with strict instruction low residue diet and to take care of bowel habits. One week after she approached opposite party with complaint of diarrhoea. After examination the opposite party referred the complainant to Dr. Mohan Rao, the Surgeon working in Specialty Hospital, Kannur. The complainant developed symptoms relating to recto vaginal fistula admitted by after a period of one week from the date of discharge establish the fact that the development of fistula cannot be attributed to be due to any fault on the part of opposite party in episiotomy or in its suturing. The opposite party adopted a standard procedure for the delivery of the complainant and performed it with all reasonable care and attention and the procedure went on uneventfully. Hence there was no negligence or deficiency in service on the part of the opposite party. The expected date of delivery was calculated on the base of the reported date of her last menstrual period. The statement that the opposite party after check up advised her that the head of the foetus is not placed in position is not correct and hence denied. The vacuum extraction was adopted after being fully convinced of its suitability to the indications and it was performed with utmost care and caution. The allegation that the opposite party misled the complainant stating that it is common in normal delivery and prescribed high dose of antibiotics and pain killers without diagnosing is false. Complainant herself admits that she did not have any complaint for a period of one week from the date of discharge. The allegations that her body condition was deteriorating and pain became unbearable etc are false. Her condition was neither becoming bad to worse nor was the pain intolerable as stated in the complaint. The complainant on her own volition abandoned the treatment with Dr. Mohan Rao and failed to turn up for review in accordance with his advice. The averment regarding waiting for the Surgeon and its vainness was purposely cooked up for taking undue advantage. The information allegedly given by Dr. Venugopal that the Complainant’s sphincter muscles have been ruptured badly is false. The allegation that episiotomy wound was deeply infected is also not correct. The statement that the rectum of the complainant was torn during delivery which was not found out by the opposite party at the time of delivery and even the opposite party did not examine her to find out complication is also false. The allegation of passing of stools was due to the anal sphincter and the rectal wall during delivery with vacuum extraction is absolutely baseless and totally irrelevant. In any case the alleged surgery for recto vaginal fistula was not necessitated because of any negligence or carelessness on the part of opposite party in attending the delivery of complainant. Complainant has not sustained any loss in consequent to any act on the part of the opposite party. Hence prayed to be pleased to dismiss the complainant. On the above pleadings the following issues have been framed for consideration. 1. Whether there is any deficiency on the part of the opposite party? 2. Whether the complainant is entitled for the relief as prayed in the complaint? 3. Relief and cost. The evidence consists of the oral testimony of PW1, DW1 and documentary evidence Ext.A1 to A7 and B1. Issues 1 to 3 Admittedly complainant had been under the antenatal care of the opposite party doctor for the last two months of her second pregnancy. She was admitted in the hospital on 29.09.2003 and taken to labour room same day and delivered a female baby by vacuum extraction after episiotomy. On 04.10.2003 she was discharged. The complainant adduced evidence in tune with the pleadings. Complainant stated in the proof affidavit that after the discharge she was continuing antibiotics and painkillers as prescribed by the opposite party doctor. After one week she felt great pain while passing urine and noticed that she was passing stool unknowingly. She approached opposite party doctor with this complaint but she was misled by telling that it is common in normal deliveries and also prescribed high dose antibiotics and pain killers without diagnosing. Pain became miserable and started deteriorating her health even after consuming the prescribed medicine. Complainant approached opposite party doctor again but she was misled telling that it is common in normal deliveries and it will cure by itself. There was relief though consumed the medicine so she approached opposite party again. Complainant alleged further that after diagnosing doctor presumed that it might be fistula and asked her to wait for the Surgeon to diagnose. Though complainant waited he did not turned up and thus she was forced to consult another Surgeon in West Coast Nursing Home, Kannur. The doctor after check up informed that sphincter muscles have been ruptured badly and the rectum has to be repaired. He advised an operation for the Recto Vaginal Fistula but only after healing of the wound. The discharge summary Ext.A1 reveals the date of admissions 29.09.2003 and date of discharge on 04.10.2003. It is recorded that complainant delivered by vacuum on 01.10.2003 at 1.26 pm a female baby of weight 3.9 Kg. It is also recorded that hospital stay was uneventful and condition of mother and baby at the time of discharge was fair. Complainant has deposed in cross examination that she has no complaint during hospital stay. Hence it can be seen that complainant felt complications after the discharge. Ext.A2 report given by Dr. Venugopal reveals that he has advised for Recto Vaginal Fistula. The main case of the Complainant is that episiotomy was done up to the rectum which was not disclosed to complainant. Further she was misled when complainant approached the doctor, opposite party, due to unbearable pain when passing urine and with problem of passing stools without knowledge. Doctor, opposite party prescribed only high dose antibiotics without even diagnosing the complaint properly. Complainant alleges that she complained that she was not able to walk, sit or carry the baby but doctor did not take it as serious. It was the third visit opposite party drew a presumption that it must be fistula. Then she was asked to wait for the Surgeon but he was not turned up. Thereafter she consulted another Surgeon, Dr. Venugopal, he who informed episiotomy wound was deeply infected and sphincter muscles have been ruptured badly and rectum has to be repaired. He advised Recto vaginal fistula. Ext.A2 seen recorded that “Divided edges of the sphincter muscles identified dissected free from the vaginal and anal flaps. Muscles repaired by overlapping the margins with interrupted no 1 viceryl 2/0 viceryl to mucosa/skin post operation period uneventful.” In cross examination DW1 deposed that she understood that the complainant had undergone operation from Dr. Venugopal and that was for the purpose of repairing the fistula. To the specific question put to her that the complainant came to her several times with complaint of passing stools without knowledge the answer was that the complainant had come to her only once. Her answer to another question that it was due to the failure of opposite party to diagnose fistula all the complications were arosed was ‘No’. So also to another question put to her during cross examination that it was only due to episiotomy done vertical from vagina towards anus fistula was formed that happened to cause all complication she answered ‘it is not acceptable’. However it can be seen that the delivery was uneventful. Ext.A1 reveals that complainant delivered by vacuum on 01.01.2003 at 1.26 pm an alive term female baby of weight 3.9 Kg cried immediately after birth. Ext.A1 also recorded Hospital stay uneventful. Condition of Mother and Baby at the time of discharge was fair. These facts were not disputed by Complainant. Complainant was discharged from Hospital on 04.10.2003. The case of the complainant thereafter is that she had visited opposite party doctor thrice. DW1 deposed in cross examination that complainant visited opposite party doctor only once. Complainant produced no document to show that she had visited doctor 3 times for consultation. But it is admitted by opposite party that complainant approached about one week after discharge with complaint of diarrhoea and after examination referred to Dr.Mohan Rao. As per her reliable knowledge Dr. Mohan Rao properly diagnosed her condition as pinhole recto vaginal fistula and prescribed proper antibiotics advising her for review after 3 days. Complainant but consulted some other doctors. Anyhow there is no evidence to show that complainant had consulted with Dr. Mohan Rao. Ext.A3 shows that the complainant had consulted Dr. A.K. Venugopal on 09.01.2004. Altogether Ext.A3 recorded 6 visits where the last time visit no medicine advised. Ext.A2 reveals that she was admitted West Coast Nursing Home on 07.01.2004 and discharged on 11.01.2004. Thus it can be presumed by Ext.A2 & 3 that the complainant had undergone treatment under Dr. A.K. Venugopal. Complainant has raised the allegation that her health condition worsened day by day after the discharge of delivery and Dr. Venugopal informed the complainant that episiotomy wound was deeply infected, her sphincter muscles have been ruptured badly and the rectum has to be repaired. Ext.A2 shows that divided edges of the sphincter muscles identified dissected free from the vaginal and anal flaps. Dr. A.K. Venugopal who has conducted operation for Recto vaginal fistula should have been examined before the Forum in order to prove at least his experience with the complainant patient. It can be seen that all important allegations of the complainant are moulded up on the opinion of Dr. Venugopal. It is he first informed episiotomy wound was deeply infected and sphincter muscles have been ruptured badly. Complainant was discharged after 4th day of delivery that is on 04.10.2003. There was no complaint on the day of discharge and there is nothing wrong to say post operative period was uneventful. Ext.A3 shows that his first visit dated presumption by Dr. Venugopal recorded on 09.02.2004. Ext.A2 reveals that date of admission for the operation conducted by Dr. Venugopalan was 07.01.2004 and date of discharge on 11.01.2004. Admission for the operation took 2 months time from the date of discharge after delivery. It is highly necessary to go deep into the fact what happened during these two months gap without which a reasonable presumption with respect to the truth of the event is not possible. The complainant stated in the complaint that after one week from the date of discharge the complainant started great pain while passing urine and noticed that she was passing stool without her knowledge. Thus it is an admitted fact that upto one week after discharge that is for more than 10 days after delivery complaint was perfectly alright. The complaint developed thereafter. According to complainant she met opposite party doctor three times which is denied by the opposite party. Complainant has pleaded and so also stated in evidence affidavit that on the first and second visit she was pacified her and presented high dose antibiotics. Third time advice given to consult Surgeon. The specific case of the opposite party is that the allegation of the complainant that “the opposite party misled the complainant stating that is common in normal and prescribed high dose of antibiotics and pain killers without diagnosing” is false and highly ill motivated. Complainant did not produced any evidence except the interested testimony of the complainant. It is not understandable why complainant has not produced the prescription to show that such and such medicine had been prescribed by opposite party doctor. Complainant has her case that opposite party doctor prescribed high dose antibiotics and pain killers. That means she is having the prescription with her but reluctant to produce it. That is the only relevant document which could be prove beyond doubt the date and number of visit together with medicine and treatment. The complainant who is the custodian of the document which is most relevant at this juncture to prove her own allegation if kept behind it is not safe to believe the allegation merely on the basis of interested testimony of complainant. Anyhow the treatment thereafter is done by some other doctors. As per available documents it can be seen she had been admitted in West Coast Nursing Home on 07.01.2004. Then arose the question who treated complainant before 07.01.2004 after leaving opposite party doctor. The date of discharge after delivery was 04.10.2003. As per the complainant’s case after the third visit she had been treated by Dr. A.K. Venugopal. The complainant’s case was that on her third visit opposite party doctor told her to go for the Surgeon for diagnose. Complainant waited but he did not come. Since the complainant was not in a position to bear the pain she was forced to consult another Surgeon. So the complainant consulted Dr. Venugopal. It is pertinent to note that the dates of her three visits were not mentioned any where. As per the version of the complainant after the third visit to the opposite party doctor she had been under the treatment of Dr. Venugopal. The date of third visit has not been mentioned the reason best known to her. But it is evident that thereafter the treatment of the complainant had been under Dr. Venugopal. It is also evident that operation had not been done immediately after consultation with Dr. Venugopal. It took a considerably lengthy of time. Complainant in her evidence affidavit stated that “thZ\ Xosc kln-¡m³ ]äm-¯-Xn-\m Rm³ I®qÀ shÌv tImÌv \gvkn-TKv tlmanse {]i-kvX-\mb kÀP³ tUmIvSÀ thWp-tKm-]m-ens\ kao-]n-¨p. hni-Z-amb ]cn-tim-[-\¡v tijT tUmIvSÀ Ft¶mSv ae-Z-zm-c-¯nsâ `mK-¯p-ff sphincter muscles\v hÃmsX £X-ta-än-«p-s-¶pT aem-i-bT icn-bm-¡-W-sa-¶pT ]d-ªp. ]t£ episiotomy apdnhv hÃmsX _m[n-¨-Xn-\m s]s«¶v H¶pT sN¿m³]-än-Ã-F-¶pT Recto Vaginal fistula bpsS Hm¸-td-j³, apdn-hv-D-W-§n-b-Xn-\p-ti-jT sN¿m-sa¶p ]d-ªv-A-Xn-\mbn Ipd¨v acp-¶v\nÀt±-in-¨p. She had also stated that Rm³ tF-I-tZiT 2 am-kT tUmIvS-dpsS ASp¯v sN¡-¸n\v t]mbn-cp-¶p. 2004 P\-hcn 6-þmT XobXn Fs¶ tUmIvS-dpsS \nÀt±-i-{]-Im-cT West Cost Nursing home Admit sNbvXp. At¶ Znh-kT Xs¶ Recto Vaginal Fistula bpsS Hm¸-td-j\v Rm³ hnt[-b-bm-bn. Ext. A2 reveals that she had been admitted in West Coast Nursing Home but date of admission was 01.01.2004. Date of operation has not been shown in Ext.A2 but date of discharge shown was 11.01.2004. Thus her own evidence reveals she had ben under treatment of Dr. A.K. Venugopal 2 months prior to the date of admission. But those prescription was not produced before Forum. What is the reason for the non production the document, prescription of the doctor. Does it mean that it is not relevant at all? The delay in operation is not without reason. It is delayed for certain specific reasons. The doctor advised the complainant that it can be done only after the wound is completely healed. Moreover it is an admitted case that Doctor had prescribed some medicine. Where is the prescription? This prescription is a very valid document to prove the allegation of the complainant with respect to the episiotomy wound especially in the light of the contention raised by opposite party that the complainant did not develop any complication either during the procedure of vacuum extraction by episiotomy or in the post natal period for a considerably sufficient period. The case of the opposite party is that the complication manifested by loose tools developed as a late onset complication. Hence it is very relevant to make assure what all treatment had been taken before the operation so as to cast negligence upon the opposite party. But complainant has not produced the prescription of medicine during the relevant period. Complainant produced cash bills of medicines Ext.A5(a) to Ext. A5(d), Ext A5(a) dated 07.01.2004, Ext.A5(b) dated 09.02.2004, A5(c) dated 23.02.2004 and Ext.A5(d) dated 2.01.2003. The date of Ext.A5(d) is not clear and doctors name seen written different. From among these bills includes a bill for Rs.17/-. But no single bill that of the medicine purchased by the complainant as part of the treatment prior to the operation conducted has not been produced. It cannot be ignored that the case of the complainant is build up on the allegation that complication arose during procedure of vacuum extraction by episiotomy and post natal treatment. Hence it is important and highly essential to know what are the treatments that have been given to complainant during the interval between the period after discharge and date of the operation conducted by Dr. Venugopal. Complainant has not felt the necessity of producing those treatment particulars. Non production of these documents resulted in failure of complainant in proving that there is negligence on the part of the opposite party in adopting the procedure of vacuum extraction and complication developed during the procedure of vacuum extraction by episiotomy or in the treatment of post natal period. It can not be ignored that opposite party raised the contention that episiotomy during delivery is for easy passage of the baby and it is an acceptable procedure. If it is otherwise the burden is upon complainant to prove that it is not an acceptable procedure. Opposite party contented that extension of the incision towards anus occurred due to big size of the baby. Ext.A1 proves that it was a baby of weight 3.9 Kg. Evidently baby was healthy. The above said aspects if wrong that could have been ascertained by examining an expert which was quite possible if complainant examined Dr.Venugopal, the Surgeon who conducted operation to complainant. The strong point that has been argued by the learned Counsel for the complainant that ‘the opposite party has done episiotomy vertically towards the anus and no body would do so could also been confirmed if he was examined. No authority has been placed before the Forum to come in to a conclusion that the allegation of complainant is true and correct. Opposite party produced Ext.B1 case sheet which also does not reveal any complication. Non examination of Dr. Venugopal vehemently caused damage to the case of complainant, since he is a material witness on the one hand and secondly as he is an expert witness. It is pertinent to note that it is he, who, informed the complainant that episiotomy wound was deeply infected and sphincter muscles had been ruptured which canot be proved without examining him. It is seen above that complainant could not even produce the prescription of Dr. Venugopal which would have been at least revealed the medicines given to her prior to the operation. If such medicine proved to be fit for the complaint as alleged the entire procedure should have been turned in favour of complainant. Complainant in toto failed to give cogent and convincing evidence to establish that there is negligence on the part of opposite party in adopting the procedure of vacuum extraction by episiotomy and in postnatal treatment and failed to prove that recto vaginal fistula was developed during procedure of episiotomy or in the postnatal treatment. In the light of the available evidence on record we are of considered opinion that complainant could not succeed to establish her case to cast deficiency in service upon the shoulders of opposite party doctor. Thus issues No.1 to 3 are found against the complainant. In the result, the complaint is dismissed. No order as the costs. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the Complainant A1. Discharge Summary issued from JJS Nursing Home, Kannur. A2. Report given by Dr. A.K.Venugopal. A3. Presciption given by Dr. A.K. Venugopal. A4. Cash bill issued from West Coast Nursing Home. A5. Cash bills for purchase of medicines (4 in Nos.) A6. Copy of the lawyer notice sent to opposite party. A7. Reply notice. Exhibits for the opposite parties B1. Case sheet of complainant maintained in JJS Nursing Home. Witness examined for the complainant PW1. Complainant Witness examined for opposite party DW1. Dr. Suverchala /forwarded by order/ SENIOR SUPERINTENDENT
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
