HYDERABAD
F.A.No.1226/2006 against C.C.No.71/2005, Dist.Forum-II, Tirupati..
Between:
Sri Kodivaka Subrahmanyam,
S/o. Sri Pakeeraiah,
Hindu, aged 56 years,
25-1-250 , Z.P. Colony,
A.K.Nagar,
Nellore-4. …Appellant/
Complainant
And
1.Dr.T.V.Shanmugan, M.S., M.Ch.,
Aged 50 years, working as
Urology Surgeon in Urology Dept.,
SVIMS Hospital , Tirupati.
2. Dr.Andrews Jesudas, M.S., M.Ch.,
Aged 40 years, working as Urology
Surgeon in Urolgoy Dept.,
SVIMS Hospital , Tirupati.
3.Dr. Suresh , Jariwala, M.S., M.Ch.,
Aged 50 years, working as Urology
Surgeon in Urology Dept.,
SVIMS Hospital, Tirupati
4. The Director,
SVIMS Hospital, Tirupati . (added as per
Orders in I.A.No.04/2006 dt.16.02.2006) … Respondents/
Opp.parties
Counsel for the appellant : party in person
Counsel for the respondents : R1 to R3 –served.
Smt. P.Sarada – R4
CORAM : THE HON’BLE JUSTICE SRI D.APPA RAO , PRESIDENT,
SMT. M.SHREESHA, HON’BLE MEMBER
AND
SRI G.BHOOPATHI REDDY , HON’BLE MEMBER
WEDNESDAY , THE THIRTEENTH DAY OF AUGUST,
TWO THOUSAND EIGHT.
Oral Order : Per Sri G.Bhoopathi Reddy Hon’ble Member)
***
This is an appeal filed by the appellant/complainant under Section 15 of the Consumer Protection Act,1986 to set aside the dismissal order passed by the District Forum-II,Tirupathi in C.C.No.71/2005 dt.23.8.2006
The appellant herein is the complainant before District Forum. He filed complaint under Section 12 of the Consumer Protection Act, 1986 to direct the opp. parties to pay a sum of Rs.10,50,000/- towards the loss of life of the patient and mental agony created by the opp.parties and deficiency of service towards the patient and suppressing the genuine facts about the patient etc.
The case of the complainant is as follows:
The complainant’s wife K.Lakshmamma was admitted in SVIMS Urology ward IP No. 242871 on 28.6.2003 for the problem of dribbling urine since 18 years. The first opp.party diagnosed it as Supra Trigonal Vesico Vaginal Fistula. The complainant’s wife explained to the opp.parties about her diabetes mellitus and hyper tension. The opp.parties 2 and 3 examined the patient and told the patient and complainant that VVF repair was needed. The opp.parties conducted all the necessary tests to make the patient fit for operation before 3.7.2003 and fixed the operation on 4.7.2003, but it was postponed to 7.7.2003 as the blood sugar level was not under control . The opp.parties after brining the D.M and B.P. under control and satisfying the condition of the patient , took the patient to operation theater at about 9 O’ clock on the morning of 7.7.2003. The opp.parties told that the operation would be completed in about 2 hours . . But the operation took nearly 5 hours and the opp.party stated the reason for delay that greater omentum was mobilized and interposed between bladder and vagina and so, the operation was complicated and took nearly 5 hours. The opp.parties assured that no problem would arise in future and it would be permanently cured. On 9.7.2003 at about 4 p.m. the patient was brought to the Urology ward and he developed severe vomitings and full abdominal distension . and the third opp.party came and introduced Naso Gastric Tube to the patient to get the aspiration from the stomach telling that abdominal distension was due to gas formation and it would subside in due course and there is no need to worry . The opp.parties took the patient to post operative urology ward to make easy access to medical care. But the patient’s abdominal distension continued and there was copious aspiration through the ryles tube and the opp.parties were not bothered to know about the cause of abdominal distension and made no efforts to diagnose the real cause for distension. On 14.7.2003 the opp.parties took bed side X-ray of the abdomen of the patient and told the complainant that the omentum which got twisted caused the obstruction. The opp.parties advised the need of conducting second operation to relieve the obstruction of abdominal distension. On 16.7.2003 the opp.parties brought Dr.Gajanana the Gastroenterologist to the patient and took X-ray . They told that the obstruction was due to paralytic ileus and it would be rectified without operation. Had the opp.parties rectified the mistake in the abdomen while opening the abdomen on the same or on the next day, the patient would have survived . The opp.parties suppressed the fact of mistake done by them during the operation and they have not conducted the second operation to rectify the mistake The complainant entertained a doubt about the suppression of facts and got ready to take her to Chennai to consult urology specialist. The opp.parties assured that it would be cured without operation and there is no need to take the patient to Chennai. The opp.parties cheated the complainant with false assurances of abdominal distension as gas formation and twisting of omentum as paralytic ileus through Gastroenterologist . The complainant got issued legal notice to the opp.parties on 31.1.2005 for which the opp.parties got issued reply notice dt.15.3.2005 with evasive statements. The opp.parties knew very well about the obstruction to abdomen from the date of distension i.e. 9.7.2003 . Had they opened the abdomen in time atleast on 10.7.2003 to rectify the mistake the patient would have survived . The complainant’s wife died due to insufficient medical care, misdiagnosing the real cause of the problem , mismanagement regarding the treatment and dishonesty of the opp.parties towards the patient . Hence the complainant approached the District Forum to direct the opp.parties to pay a sum of Rs.10,50,000/- towards the loss of life of the patient and mental agony created by them and deficiency of service towards the patient and suppressing the genuine facts about the patient etc.
The opp.parties 1 to 3 filed written version denying the allegations made in the complaint and contending that the complainant is not a consumer as defined in Section 2(1)(d) of the Consumer Protection Act and the complainant or his deceased wife not hired their services. The opp.parties conducted all the necessary tests to make the wife of the complainant fit for operation. When the opp.parties opened the abdomen of the patient , there were adhesions due to previous surgery conducted elsewhere. In the post operative period the patient developed abdominal distension for which naso gastric tube was inserted On account of long standing diabetes mellitus , diagnosis of paralytic ileus was made and the patient was treated on similar lines. The patient was managed conservatively and was well taken care of with regard to monitoring and periodic rounds daily. On the opinion of Grastroenterologist the opposite parties felt that there is no necessity for second operation on the patient. The distension of abdomen in post operative period after any inter abdominal surgery is common and the cause of this is paralytic ileus and not intestinal obstruction. The opp.parties tried their best to save the complainant’s wife. The complainant has not enclosed any expert opinion in support of his allegations against the opp.parties. The opp.parties stated that the complaint is devoid of merits and is liable to be dismissed with exemplary costs.
As per the order in I.A.No.04/2006 dt.16.2.2006, SVIMS Hospital represented by its Director was added as opposite party no.4. The opp.party no.4 filed written version denying the allegations made in the complaint and contending that under Section 3(4) of SVIMS University Act,1995 any legal proceedings can be initiated only against the Registrar of the said institute and the complainant in violation of the above provision impleaded SVIMS, represented by its Director and on this ground only complain is liable to be dismissed against opp.party no.4 The opp.party prayed for dismissal of the complaint with costs.
The complainant was examined as PW.1 and got marked Exs.A1 to A7 . The opp.party no.2 was examined as RW. 1 and Dr. Rajasekhar Cardiologist , SVIMS , Tirupati was examined as RW.2. Ex.B1 document was marked on behalf of the opp.parties.. The District Forum based on the evidence adduced and pleadings, dismissed the complaint without costs.
Aggrieved by the dismissal order of the District Forum , the complainant preferred this appeal contending that the District Forum has not properly appreciated the evidence on record. The opp.parties have performed VVF surgery to the complainant’s wife on 7.7.2003 and they made negligence during the operation and post operative period and hence the complainant’s wife died on 18.7.2003. The written versions and affidavits filed by Dr.Andrews Jesudas and Dr.Rajasekhar are not related to the case sheet of the patient. The opp.parties took the help of Dr.Rajasekhar (Cardiologist) who was not at all concerned , to escape the negligence made towards the patient. Even in Cardiology Department Dr.Rajasekhar has not examined the patient. The opp.parties have taken formal consent as usual to all operations and the complications of the operation were not explained by the opp.parties before operation .The District Forum has not taken into consideration the medical literature filed by the complainants i.e. Medical Book of Harrisons’s Principles of Internal Medicine, the Medical Book of Baile and Loves Practice of Surgery and Shaws book of Gynaecology and other medical literature filed by the complainant are not taken into consideration. The opp.parties have not followed the procedure as per the literature . The District Forum has not properly discussed the case sheet . The appellant prayed to set aside the order passed by the District Forum and allow the appeal.
The point for determination is whether there is any medical negligence on the part of the opp.parties in the treatment given to the wife of the complainant ?
There is no dispute with regard to the complainant’s wife K.Laxmamma admitted in SVIMS hospital on 28.6.2003 for the problem of dribbling urine . The opp.parties examined the patient and advised for performing VVF repair and consent was obtained from the deceased and complainant and operation was performed after controlling DM and B.P. The appellant submits that the opp.parties suppressed about the condition of the patient and without conducting pre operation tests conducted VVF repair operation without obtaining high risk consent and the District Forum has not properly appreciated the evidence of PW. 1 besides the documents filed by the complainant and Ex.B1 is case sheet . The respondents submit that there is no expert evidence to prove that on account of the medical negligence the wife of the complainant died.
The complainant has issued a legal notice Ex.A1 dt.31.1.2005 to the opp.parties in which it is stated that his wife was suffering with prolonged dribbling urine problem and the opp.parties 2 and 3 examined the patient and stated that VVF repair was needed , before conducting operation tests were conducted and the operation was done on 7.7.2003. After conducting operation she developed abdominal distention and vomiting . The opp.parties have not taken single X ray to the abdomen of the patient for a period of 6 days from 9.7.2003 to 14.7.2003 . During the said period the opp.parties never visited the patient . Due to mistake in conducting operation the patient developed severe vomitings and full abdominal distension took place. On 18.7.2003 on account of negligence the patient died. Ex.A3 is reply given by the opp.parties stating that due to prolonged paralytic ileus, diabetes mellitus , hypertension and obesity , the patient developed deep vein thrombosis and pulmonary embolism and died on 18.7.2003 , during the post operative period patient’s attendants were clearly explained about the status of the patient and there was no medical negligence. Ex.A4 is another legal notice issued on behalf of the complainant to the opp.parties . stating that there was medical negligence on the part of the opp.parties due to which the patient died. Ex.A6 is the Out Patient Medical Record maintained by S.V.I.M.S. Hospital , Tirupathi . In support of the complainant’s claim the affidavit evidence of PW.1 and documentary evidence Exs.A1 to A7 are filed .
There was no expert opinion filed by the complainant to show that on account of the medical negligence in conducting operation his wife died. PW.1 i.e. complainant was cross examined by the opp.parties. In the cross examination the complainant admitted that while his wife was undergoing treatment in the hospital safety dose of potassium choloride was administered and death of his wife was not due to administration of potassium chloride and also not due to administration of excessive I.V. fluids and his wife died due to pulmonary embolism and deep vain thrombosis and also septicaemic shock . He also admitted that the death of his wife was due to twisting of omentum and due to obstruction of circulation of blood to the intestine.
In support of the opp.parties claim RW.1 and RW2 were examined. RW.1 is Dr.Andrews Jesudas working as Urologist in opp.party no.4 hospital As per his evidence goes to show that the complainant’s wife came to the hospital with a complaint of dribbling of urine and the said problem developed after she had undergone histerectomy operation 18 years back , and the patient was thoroughly examined and was diagnosed as having Vesico Vaginal Fistula and was advised to go in for a surgery to cure the problem for which the patient consented and on 7.7.2003 operation was conducted . It is also stated that during the post operative period the opp.parties took due care of the patient and there is no medical negligence on this aspect. As per his affidavit evidence goes to show that he has taken all the necessary tests before conducting operation .
Apart from this RW.2 Dr. Rajasekhar also given affidavit evidence stating that after the patient was operated for Vesico Vaginal Fistula she was referred to him as she complained of chest pain during the post operative period and he has thoroughly examined the patient and diagnosed that the patient is suffering with pulmonary embolism and advised to undergo certain confirmatory tests and thereafter Heparin was administered to the patient under his instructions. It is also stated that due to prolonged paralytic ileus coupled with diabetic mellitus hyper tension and obesity the patient developed deep vein thrombosis , pulmonary embolism and septaemic shock on 18.7.2003 due to which she died. We have also gone through Ex.B1 case sheet . The case sheet also discloses that all the required necessary tests were conducted before the operation and there was no medical negligence on the part of the opp.parties. The District Forum has elaborately discussed expert evidences of RW.1 and RW2 and given finding that there was no medical negligence. On the other hand RW.1 and R2 were also cross examined by the complainant . In the cross examination also RW.1 and RW.2 clarified that there was no medical negligence on the part of the opp.parties while conducting operation. The District Forum has also elaborately discussed and given finding that there was no medical negligence on the part of the opp.parties in conducting operation. The burden lies on the complainant to prove that there was medical negligence . The complainant has not filed any expert evidence nor examined any medical officer to show that on account of conducting the said operation negligently by the opp.parties the patient died. Except the evidence affidavit of PW.1, legal notices and other letter correspondence there was no other evidence lead by the appellant/complainant to show that there was medical negligence
The appellant contended that the opp.parties considered the operation as simple one and not risky and only taken formal consent from him and have not explained the risk of operation . There is no doubt that when the complainant has complained regarding the dribbling of urine simply operation was conducted after obtaining the consent and subsequently complications arose . RW.2 also seen the patient and administered the medicines The ordinary formal consent was obtained and there is no necessity to obtain the high risk consent . For subsequent complications an injection was also given under the guidance of RW.2. The opp.party no.2 was examined as RW1. There is no rebuttal evidence lead by the complainant . The complainant’s wife underwent major abdominal operation previously . This fact was not disclosed to the opp.parties. As per Ex.B1 case sheet the complainant’s wife died due to pulmonary embolism , cardio respiratory arrest and septicalmic shock. In the medical book of Harrisons Principles of Internal Medicine it is stated that “ some 90% of deaths due to embolism occur within an hour or two before the diagnostic therapeutic plan can be implemented” whereas in this case the patient survived from 10.7.2003 to 18.7.2003 for a period of 9 days and the allegation of pulmonary embolism on 10.7.2003 by Dr.Rajasekhar (Cardiologist) was not correct. Dr.Rajasekhar clarified in his evidence that he has conducted tests on complainant’s wife. The Dist.Forum has taken into consideration the evidence of said doctor .
At the appellate stage the appellant has filed medical literature. The appellant has not filed any medical literature before the District Forum . The appellant in his written arguments stated that a) The Harrison’s Principles of Internal Medicine states that “Adynamic , ileus or paralytic ileus occurs to some degree after any abdominal operation , it usually last 2 to 3 days after most operative procedures. Adynamic ileus may occur after any paritonail insult and its seveity and duration will be dependent to some degree on the peritoneal injury “ b) The medical book of the Baile and loves practice of Surgery states that “ A degree of ileus usually occurs after any peritonail procedure and is self limiting with a variable duration of 24 to 72 hours” , c) the Shaws book of Gynecology states “Intestinal Peristalsis returns in 6 to 8 hours followed by Gastric Peristalsis . But colonic activity takes to 2 to 3 days to return, d). the book of Manipal manual of surgery states “Small bowl activity returns with in 12-18 hours followed by colon which starts functioning with in 36 -48 hours. However gastric function may return ranging from 18 hours to 4 days”. .
The medical literature filed by the appellant is not supported by any oral evidence lead by the appellant nor hospital record or other documentary evidence. RW.1 admitted in the cross examination that in normal cases paralytic ileus will subside within a period of 5 to 6 days after operation. The District Forum has elaborately discussed the pleas taken by the parties and documentary evidence and given finding that there is no medical negligence on the part of the opp.parties while conducting operation. To prove the medical negligence aspect is concerned Ex.A6 is the copy of the case sheet and Ex.A7 is the X-rays . Evidence of RW1 Dr.Andrews Jesudas, Urologist and RW.2 Dr. Rajasekhar , Cardiologist discloses that they have taken all steps before conducting operation and even after operation also they have taken all the precautionary steps . There was no medical negligence . The medical literature filed by the appellant at the appellant stage cannot be taken into consideration. To substantiate the claim of the appellant the medical literature filed by the appellant is not supported by any oral evidence lead by the appellant. As per the medical literature filed by the appellant itself goes to show that there was no medical negligence on the part of the opp.parties while conducting operation.
Ex.B1 is the case sheet maintained by R4 hospital .We have gone through the case sheet which also discloses that before conducting operation all the required tests were conducted and then only operation was conducted subsequently the heart specialist also attended on the patient and the patient has died due to cardiac problem. The appellant has failed to prove that there is medical negligence on the part of the opp.parties. The District Forum has elaborately discussed and given finding that there was no medical negligence . There are no reasonable grounds to interfere with the order passed by the District Forum .
In the result appeal is dismissed . In the circumstances without costs
PRESIDENT LADY MEMBER MALE MEMBER
Dt. 13.8.2008
Pm*
