Tamil Nadu

Ariyalur

RBT/CC/82/2022

Anandhi Ravishandran - Complainant(s)

Versus

Dr.Uma Ram, Dip NB FRCOG - Opp.Party(s)

S.Rajeshwari

28 Feb 2023

ORDER

                                                                                                                   Complaint taken on file: 15.05.2022

   Order delivered on: 28.02.2023

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ARIYALUR

PRESENT: Dr.V.Ramaraj M.L, Ph.D: President

Mr.N.Balu B.A, B.L: Member – I

Mrs.V.Lavanya B.A, B.L: Member-II

Consumer Complaint (RBT) No. 82/2022

Friday, the twenty eighth day of February, 2023

 

Anandhi Ravichandran,

W/o. V. Ravichandran,

4^th Street, Sbhiramapuram,

Chennai – 600 018                                                                  …                     Complainant    

                                                                                                    

          -Vs-

 

1). Dr. Uma Ram Dip.NB, FRCOG,

Seethapathy Clinic & Hospital Pvt Ltd.,

128/241, Royapettah High Road,

Chennai – 600 014.  

 

2).  Seethapathy Clinic & Hospital Pvt Ltd,

128/241, Royapettah High Road,

Chennai – 600 014.                                                                  …                 Opposite Parties

 

Counsel for the Complainant: M/s.S.Rajeshwari

Counsel for the Opposite Party: M/s. Deepika Murali

 

            The complainant has filed this case praying to direct the opposite parties to pay a sum of Rs.4,49,036/- towards the bill raised by Madras Medical Mission Hospital for the corrective ureteral re-implantation surgery done to the complainant because of the error and negligence on the part of the 1^st opposite party while performing laparoscopic hysterectomy, a sum of Rs.55,121/- towards the bill raised by the same hospital for removing the catheter stent because of the negligence and error on the part of the 1^st opposite party, a sum of Rs.50,000/- towards post medical and surgery expenses and Rs.10,00,000/- towards mental agony, business loss and hardships caused to the complainant.

 

ORDER

Pronounced by Mr.N.Balu: Member-I

Adopted by Dr.V.Ramaraj: President

  and Mrs.V.Lavanya: Member-II    

 

   The facts of the complaint in brief:

 

1.            The complainant, a degree holder and an interior designer is running a company in the name and style of Aashreya in Chennai for over 19 years. The 2^nd opposite party, a hospital founded by Dr.N.S.Murali and Dr.Sarojini Raman has earned a good name among the general public. The 1^st opposite party is an Obstetrics and Gynaecology doctor working as a full-time staff in the 2^nd opposite party hospital. The complainant got married in the year 1985 and delivered a baby in the year 1986. The delivery was normal and the complainant did not suffer any medical complication after the delivery. In the year 2015, the complainant faced some irregular periods for 5 months and hence she consulted the 1^st opposite party in March, 2015 who investigated her and advised her to have endometrial biopsy and also performed the same to the complainant. The 1^st opposite party informed the test shows that the complainant had hyperplasia with multiple foci of atypia and further diagnosed that the complainant had a fibroid uterus with umbilical hernia.

 

2.           The 1^st opposite party advised the complainant to undergo “total laparoscopic hysterectomy” in which the whole of the uterus will be removed with minimal risk of failure and also explained the surgery procedure that it is a minimal invasive surgical procedure to remove the uterus wherein a small incision would be made in the navel through which a tiny camera would be inserted. The surgeon would watch the image through the camera while performing the procedure, 2 or 3 other tiny incisions would be made in the lower abdomen through which some specialised instruments would be inserted which are essential for the removal process. The complainant agreed to undergo the total laparoscopic hysterectomy. The 1^st opposite party performed the surgery to the complainant on 20.05.2015 in the 2^nd opposite party hospital and the surgery went on for about 2 hours after which the 1^st opposite party informed the complainant that she had done it with due care and advised her to follow post-surgery procedures. The complainant was discharged on 22.05.2015.

 

3.           The complainant started to suffer some unusual symptom of excruciating pain and continuous urinary leak from the vagina on 26.05.2015 and hence consulted the 1^st opposite party who examined her and found that though abdomen and vaginal vault were healing well, there was a clear flow of urine. The possibility of a fistula or abnormal connection between the bladder and vagina or ureter and vagina was discussed. The 1^st opposite party performed “Triple swab test” to the complainant and informed that a possible ureteric injury was found and hence advised her to consult a Uro Gynaecologist for further evaluation.

 

4.           Accordingly, the complainant consulted Dr.Tamilselvi who advised to take a CT scan. The complainant took CT scan and then Dr.Tamilselvi observed that there was evidence of right ureteric vaginal fistula with mild right hydro ureter-nephrosis as a post hysterectomy status and the fistulous communication was 2.2 cms from the VUJ (Vescicoureteric Junction). The complainant came to know that the 1^st opposite party while performing the hysterectomy surgery to the complainant had carelessly and negligently caused a ureter vaginal fistula. In simple terms, a stitch was run through the ureter which may cause an abnormal opening in between the ureter, an organ that processes urine and carries it out of the body to the bladder and then to the vagina. Then, the complainant consulted Dr.Sunil Shroff, urologist at Madras Medical Mission Hospital on 01.06.2015 who heard the symptoms and studied the post hysterectomy tests and CT scan reports reiterated a ureteric-vaginal fistula. On Dr.Sunil’s expert advice, the complainant was admitted for the corrective ‘ureteral re-implantation surgery’  and the surgery was performed on 02.06.2015.

 

5.           The corrective surgical procedure was done for 5 hours with one day in intensive care. With the drain removed on the 3^rd day, supra pubic catheter was removed on the 15^th day, the Foleys catheter on the 18^th day and the complainant was discharged ion the 19^th day. The post-operative period went uneventful and it was a great relief for the complainant though the 19 days of hospitalization was a traumatizing time for her. The complainant was discharged with a DJ stent in situ placed during the surgical procedure and had to drain for 8 weeks to ease the recovery of the re-implanted ureter. The complainant at the end of 8 weeks was again hospitalized for 2 days for removal of the ureteral DJ stent and for cystoscopy procedure. The complainant left her trauma behind and is undergoing regular reviews with urologist Dr.Sunil Shroff.

 

6.           The corrective surgery, stent removal, hospitalisation, tests etc… were very expensive in addition to the fact that the complainant was given physiotherapy for months together. The complainant was not able to work for her business for many months after the laparoscopic hysterectomy surgery. Ureters are the tubes that carry urine from the kidneys to the bladder. Normally, the ureter enters the bladder which is made of muscles in such a way that urine is allowed to enter into the bladder but is not allowed to return to the kidneys. Generally, a ureteral re-implant surgery changes the way an abnormally positioned ureter connects with the bladder. When the ureter enters the bladder abnormally, the muscle backing of the bladder does not completely cover the ureter and as a result urine flows back towards the kidneys causing damage to the kidneys. For the complainant, the original ureter was surgically re-positioned or re-implanted in the bladder wall by way of raising a Boeri flap and right ureteric re-implantation. The end of the ureter is surrounded by bladder by bladder muscle in the new position, which prevents urine from backing up (refluxing) toward the kidney.

 

7.           Because of the corrective surgery, the right ureteral system of the complainant has been modified which made the complainant to follow many prerogative measures to avoid future health issues. The complainant further alleges that hysterectomy is a very common operation and because of the wrong handing and negligence by the 1^st opposite party, she had to undergo repeated operations and enormous sufferings. After treatment at Madras Medical Mission Hospital at Chennai, the complainant’s problem relating to ureteral injury was corrected. The damage caused to her ureter had been kept secret by the opposite party and it was clarified by Dr.Sunil Shroff which is corroborated by the discharge summary given by Dr.Sunil Shroff on 02.06.2015. The 1^st opposite party purposefully kept the complainant in total darkness after the completion of the hysterectomy operation. The complications which followed the hysterectomy operation were primarily due to the error, negligence and deficiency on the part of the 1^st opposite party while performing the laparoscopic hysterectomy.

 

8.           The civil liability of medical practitioners towards their patients is invoked by the complainant for compensation. If a person holds himself out as possessing special skill and knowledge and he or she is consulted by a patient, he or she owes a duty to use due caution, circumspection and skill in undertaking treatment to the patient. When the patient submits to his/her directions and treatment, the medical practitioner should accept the responsibility and should owe duty to use due skill and care, vigilance and diligence of a prudent medical practitioner to the patient. Law requires reasonable and just standard of care and competence.

 

9.           The complainant sent legal notice to the opposite parties on 29.06.2015 stating that due to the error and negligence of the 1^st opposite party, the complainant had to undergo 2^nd corrective surgery of ureteral fistula. The 1^st opposite party using the letter head of the 2^nd opposite party sent a reply notice dated 12.09.2015 which confirms the following points that the complainant has undergone endometrial biopsy in April, 2015. From the endometrial biopsy, it is confirmed that the complainant was suffering from hyperplasia with multiple foci of atypia and further fibroid uterus with umbilical hernia. The facts that the laparoscopic hysterectomy was performed by the 1^st opposite party and that on 26.05.2015, the complainant returned to the 1^st opposite party experiencing pain and continuous watery discharge. The possibility of a fistula or abnormal connection between the bladder and the vagina or between ureter and vagina was also diagnosed by the 1^st opposite party who recommended triple swab test. The 1^st opposite party was admittedly present during the corrective surgery performed by Dr.Sunil Shroff at Madras Medical Mission Hospital.

 

10.            The complainant’s trauma started on the 6^th day of the hysterectomy operation with an excruciating pain in the abdomen and sudden and continuous leakage of urine. The 1^st opposite party herself examined the complainant and referred her to Dr.Tamilselvi, an urologist for further examinations and tests wherein it was proved that the complainant had ureteral vaginal fistula (in simpler terms a perforation or nick to the ureter) caused during the process of the hysterectomy procedure. Adding to the pain and injury was the humiliation of wearing adult diapers to manage the continuous leak right through the time until a corrective procedure was to be decided on. The complainant had to get a Foley catheter in place as the leak through an unnatural line would cause damage to the kidney.

 

11.            The corrective surgery was a traumatic experience which required 19 days of hospitalization and during that process the complainant had catheters and drain in place which were removed at intervals as the Uro-surgeon had to ensure that there were no complications and were functioning normally. Even after discharge, the complainant had to remain with ureteral DJ stent which was to help the internal recovery. The in-situ stent had its own set of discomfort, flank pain each time the complainant had to urinate. At the end of 8 weeks of implanting the DJ ureteral stent, the complainant was hospitalized for removal of the in-situ DJ stent when cystoscopy procedure was done to ensure normalcy and this procedure was again done under anaesthesia and required 2 days hospitalization.

 

12.            The complainant’s life is normal now with periodical reviews. It was a traumatic 2 months not only for the complainant but for her entire family who had to provide necessary care both in the hospital and at home. The entire trauma the complainant suffered was due to the negligence of the 1^st opposite party while performing the hysterectomy procedure. In simpler terms, the ureter was sutured to the vagina. Had that not happened, the complainant would be leading a normal life like others without any fear. Hence, the complainant prays to pass an award directing the opposite parties to pay Rs.4,49,036/- towards the bill raised by Madras Medical Mission Hospital for the corrective ureteral re-implantation surgery, Rs.55,121/- towards the bill raised by Madras Medical Mission Hospital for removing the catheter stent, Rs.50,000/- towards post-surgery medical expenses, to pay Rs.10,00,000/- towards mental agony, business loss and hardship caused to the complainant because of the negligence and error on the part of the 1^st opposite party while performing the total laparoscopic hysterectomy to the complainant.

 

          The facts of Written Versions of the Opposite Party in brief:

 

13.            The 1^st and 2^nd opposite parties have jointly filed the written version. The 1^st opposite party is a practicing obstetrician and gynaecologist with 23 years of experience in the field. The clinic of the 2^nd opposite party was founded in the year 1965with specialised treatments for obstetrics and gynaecology, surgeries and paediatrics. The N.A.B.H accredited institution used to maintain high standard in the quality of care handling 20,000 outpatients annually out of whom 2,000 patients are admitted as in-patients and are operated. The number of surgeries has risen to about 160 per month. The obstetrics and gynaecology cases constitute 1500 annually.

 

14.            The 1^st opposite party is the Director of obstetrics and gynaecology udepartment who is the chief obstetrics consultant in the hospital; she supervises all the gynaecology patients and handles majority of the cases personally who has performed over 600 laparoscopic hysterectomies which include some complex surgeries. She is a trainer in skill development workshops for post graduate students, famous speaker in conferences, examiner for MRCOG examination conducted by Royal college of obstetricians and gynaecologists, U.K. The opposite parties exercise utmost care in handling their patients and always render the best possible medical treatment. The facilities available with the 2^nd opposite party and the work experience of the 1^st opposite party and of the other junior doctors have together made the 2^nd opposite party one of the best hospitals for obstetrics and gynaecology in Chennai.

 

15.            The complainant had been their patient for several years and hence her medical history is well known to the opposite parties. When the complainant consulted the opposite parties regarding her irregular menstrual cycles in March, 2015, the opposite parties conducted some tests including endometrial biopsy to diagnose the problem. It was diagnosed that the complainant had hyperplasia with multiple foci of atypia as well as an umbilical hernia. If left untreated, atypia has a risk of progressing to cancer. Hence, laparoscopic hysterectomy and repair of hernia were indicated as remedial treatment. The process, procedure and risks of the same were explained to the complainant and after her understanding and consent, it was decided to proceed with the surgery.

 

16.            The surgery was performed on 20.05.2015 and after that the complainant was recovering and had no difficulty in passing urine, no flank pain or fever in the post-operative period. The complainant was apparently normal and showed no sign of any immediate post-operative complication and hence was discharged on 22.05.2015. When the complainant rushed to the hospital on 25.05.2015 with a complaint of pain and continuous watery discharge. The examinations revealed that the abdomen was well healed and there was no distention or tenderness. The vault was healing well but there was a discharge clear fluid from the vagina. The possibility that the clear fluid could be urine leaking from the bladder or ureter through vagina was discussed.

 

17.            A triple swap test was done on the next day which revealed a possible ureteric injury. The 1^st opposite party was transparent in dealing with the complainant who advised the complainant to consult a urogynecologist or a urologist and also suggested the names of some senior consultants to evaluate and treat the ureteric injury. With the consent of the complainant, she arranged an appointment with Dr.Tamilselvi (urogynecologist) and Dr.Sunil Shroff (urologist) at Madras Medical Mission Hospital, Chennai. Further, a CT scan was done and site of the ureteric fistula identified.

 

18.            Dr.Sunil Shroff suggested surgery and with the consent of the complainant, the surgery took place at Madras Medical Mission Hospital on 02.06.2015 when the 1^st was opposite party was also present in the surgery and then kept in touch with the doctors for the follow up. The 1^st opposite party then continued to be in constant touch with those urologists and the complainant. The care and concern the 1^st opposite party showed on the complainant has been twisted to suit the case of the complainant but adding ulterior motives to her actions. The opposite parties did their best to care for the complainant and did not act in negligent manner at any point of time. There was no breach of duty or act of negligence on the part of the opposite parties.

 

19.            A suitable reply notice was issued on 12.09.2015 to complainant’s notice dated 29.06.2015. The diagnosis and treatment and the pot-operative care given to the complainant at the 2^nd opposite party was sound and with proper consent of the complainant and the complainant had no complaint or complication till her discharge on 22.05.2015. the opposite parties exercised due care and caution all the times. There is no question of shortfall in the standard of medical care, advice and treatment. Sometimes, complications happen in the case of surgeries despite standard precautions and proper care and caution as per the variations of patients and their tissue response to stress, surgery and inflammation and according to the varied healing tendency of each human body. Besides these factors, sometimes complications occur due to unknown reasons as well and hence all complications can not be attributed to the surgeon.

 

20.            Several studies reveal that incidence of major complication in laparoscopic hysterectomy is 3.5% to 5% and the incidence of injury to the ureter has been reported as falling between 1% to 2%. There are different types of ureteric injury such as transection, crush injury, devascularisation during tissue dissection or damage with adjacent thermal energy while gaining haemostasis (control of bleeding vessels). The normal distance of the ureter from the cervix is 2.3 cms. Studies reveal that in 12% of normal people, due to variation of normal anatomy, it is less than 0.5 cms from the cervix which can contribute to ureteral injury. In order to avoid injury to the other organs including ureter, certain steps are taken at the ime of injury. Adjacent organs are identified and care is taken to stay close to the uterus to minimise surgery. The latest devices including high definition (HD) laparoscopic camera give better visibility during surgery. Sealing and harmonic scalpels which stop bleeding with minimal spread of heat to affect surrounding tissues help protect adjacent tissue from injury. Some of the technology like high HD camera harmonic/sealing devices are actually not routinely available in many hospitals. All the above-mentioned latest devices which are considered standard of care were used during the surgery of the complainant.

 

21.            Hence, the opposite parties used the very best technology and devices to prevent any possible complication during surgery and there is no question of negligence on the part of the opposite parties. In a laparoscopic hysterectomy, the uterus is removed under vision. Therefore, no suturing or ligation is done to control the bleeding or releasing the support of the uterus. After the uterus is separated, it is removed via the vagina taking care to push the bladder and the ureter out of the way and then the vaginal opening is closed using sutures. All these precautions are taken to avoid any possible injury. If there is complete transection or a direct injury to the ureter, it is more likely to be recognised immediately.

 

22.            The complainant during her stay in hospital was without any complication and had no difficulty in voiding urine and had no flank pain or fever. The delayed presentation reveals that it is complication arising from response/inflammation of the patient’s tissues to the procedure despite taking the best precautions. But it is not a negligence. During the repair surgery done in MMM Hospital, it was found that there was no complete transection or ligation (suturing) of the ureter because it was possible to pass a stent through that. Re-implantation was done only because the ureter wall was unhealthy ad to avoid any narrowing forming later around the stent. The procedure followed by Dr. Sunil Shroff to repair completely complies with standards of care.

 

23.           The complainant is under gross misconception about the alleged medical negligence. During her prior consultations with the opposite parties, the complainant never had any issue with the diagnosis offered by the opposite parties. The complaint has been filed belatedly, after the lapse of 2 years. The claims made by the complainant are exorbitant. The complaint has been filed with a view to extract money from the opposite parties. The complainant has failed to produce any proof of her claims of medical negligence. In fact, the 1^st opposite party only suggested to the complainant to consult Dr. Sunil Shroff. But the complainant has suppressed this material fact. This complaint has been filed a few weeks before the end of limitation which shows that the complainant has not come with clean hands.

 

24.            A perusal of medical bills produced by the complainant show that about half of the amount comprises of room rent; as the complainant had booked super deluxe rooms, the total room rent was Rs.2,31,540/-. The complainant cannot claim to reimburse the room rent. The complainant need not have stayed in hospital for 19 days while doing ureteral re-implantation surgery as such surgery does not require a stay over 7 to 10 days in hospital. The complainant made a personal choice to stay for 19 days in super deluxe rooms and hence she cannot claim that amount from the opposite parties after about 2 years. When the complainant returned with symptoms after few days of surgery, the 1^st opposite party appropriately identified the problem, honestly explained as to what has happened and also referred her to the competent person for remedy. The complications developed to the complainant were beyond the control of the opposite parties which could have been caused by various external factors like age, health and physical fitness of the patient, hereditary illnesses, immunity, etc., which cannot be attributed to the negligence of the opposite parties.

 

25.           The opposite parties have sent detailed reply notice to the notice sent by the complainant. The opposite parties did not admit the contents of the notice. The complainant unnecessarily attributes motive to the presence of the 1^st opposite party during the ureteral re-implantation surgery. In fact, the 1^st opposite party was present out of genuine care and concern towards the complainant and also in the capacity of a referring doctor. The complainant was already suffering from hernia and this cannot be attributed to medical negligence on the part of opposite parties as alleged by the complainant. The complainant has alleged that the ureter was sutured to the vagina which is vehemently denied by the opposite parties. The complainant has no basis or proof to substantiate this allegation. Hence, the opposite parties pray to dismiss the complaint for lack of cause of action, as the complainant has not come with clean hands and as the complaint has been filed with a motive to malign the reputation and goodwill of the opposite parties.

 

26.  Preliminary Point to be considered:

 

             Whether this complaint is maintainable or does it suffer from lack of cause of action or has the complainant approached this commission with unclean hands or has the complaint been filed with a motive of extorting money from the opposite parties?

 

27.            In their written version the opposite parties have stated in 16^th paragraph that the complaint lacks cause of action as it has been filed after a lapse of 2 years but they themselves state in 17^th paragraph that the complaint has been filed at the last minute before the limitation runs out. The 1^st opposite party has stated that her care and concern towards the complainant have been twisted to suit the story of the complainant and that the complainant has added ulterior motives to the actions of the 1^st opposite party. The 1^st opposite party has stated in paragraph 17 of their written version that this complaint is only a means to arm twist the opposite parties into a settlement.

 

28.           The alleged incident has taken place on 20.05.2015 and the complaint has been filed on 08.05.2015 which is within the statutory limitation of 2 years Therefore, there is no dispute with regard to the limitation. The 1^st opposite party has admittedly referred the complainant to and also arranged an appointment with Dr. Sunil Shroff who performed the curative surgery to the complainant in the presence of the 1^st opposite party. The 1^st opposite party kept in constant touch with those doctors after the curative surgery. The 1^st opposite party’s version that her care and concern towards the complainant has been misunderstood by the complainant is ruled out as baseless.

 

29.            The version of the opposite parties that this complaint is a means to arm twist the opposite parties into a settlement is also baseless absolutely without any evidence. The 1^st opposite party has stated in paragraph 17 of the written version that even after filing the complaint, there were only sporadic appearances of the complainant before the commission and it proves that the complainant was not interested in pursuing the case. It is the discretionary power of the commission to seek the appearance of the complainant or to dispense with the appearance of the complainant in the case of advocates appearing on behalf of complainants. The opposite parties allege that the complainant did not properly attend the hearings but have failed to substantiate their claim with necessary evidence. Hence, this commission concludes that the complaint does not suffer from any defect as alleged by the opposite parties and is maintainable.
30.  Issues to be considered:

 

(1). Whether the opposite parties have committed any deficiency in their service to the complainant?

 

(2). If yes, whether the complainant is entitled to get the reliefs as prayed in the complaint?

 

(3). What are the other reliefs the complainant is entitled to get?

 

Issue No.1

 

31.           There is no dispute with the facts that the complainant got admitted in the 2^nd opposite party hospital to undergo the total laparoscopic hysterectomy, the 1^st opposite party performed the surgery to the complainant on 20.05.2015, the complainant was discharged on 22.05.2015, the complainant again returned to the hospital on 26.05.2015 with a complaint of experiencing pain and continuous watery discharge, was diagnosed to be a ureteric injury possibly caused during the process of the laparoscopic hysterectomy surgery and then in order to cure the ureteric fistula that formed after the surgery, a curative surgery was conducted at MMM Hospital by Dr.Sunil Shroff, Chennai on 02.06.2015 and that the complainant feels normal after the second surgery.

 

32.           The dispute is with regard to the issue as to whether the ureteric injury or ureteric fistula to the complainant that followed the laparoscopic surgery was a result of an error or negligence committed by the 1^st opposite party while performing the surgery as alleged by the complainant or is a known complication in the laparoscopic hysterectomy surgeries which happen to 3.5% to 5% of the  patients who undergo such surgeries despite all standard precautions but due to reasons such as tissue response of the patient to stress, surgery and inflammation and varied healing tendencies of human body or due to some unknown reasons as alleged by the opposite parties.  

 

33.               The complainant has raised 3 questions in her additional written arguments. They are whether the opposite parties obtained separate consent for removal of ovaries and fallopian tubes, whether the 1^st opposite party failed to perform D&C (Dilation & Curettage) well in advance before performing the surgery and whether the 1^st opposite party negligently performed the surgery. The complainant herself has admitted in paragraph 4-2 of the complaint that after the diagnose of hyperplasia with multiple foci of Atypia, the first opposite party advised to go for laparoscopic hysterectomy and well explained about the surgery procedure that a small incision will be made in the novel through which a tiny camera will be inserted which would enable the surgeon to watch the image and that 2 other incisions would be made for inserting specialized instruments meant for removal process.

 

34.            The 1^st question of the complainant is answered as follows that consent has been obtained from the complainant for the surgery mentioning all the complications, the process, etc and hence there is no need to obtain separate consent from the complainant for removal of ovaries and fallopian tubes. As far as the 2^nd question is concerned, the complainant has not raised any such point in her complaint that D & C (Dilation & Curettage) was not done to her before the commencement of the surgery and has not attributed any impact because of non-performance of D & C. Therefore, it is decided that there was no mistake in non-performing of D & C to the complainant well in advance before the commencement of the surgery.

 

35.         The opposite parties rely on “Ins. Malhotra -Vs- Dr. A.Kriplani 2009 (4) SCC 705” wherein Bolem test has been approved. In this case law, the points of negligence in medical profession especially the difference between occupational negligence and professional negligence has been discussed in detail and a decision has been arrived as failure to use extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the point of negligence. They further rely on “Kusum Sharma -Vs- Batra Hospital and Medical Research Centre 2010 (3) SCC 480” in which the Supreme court has opined that a medical practitioner would be liable for negligence only when the conduct falls below the standards of a reasonably competent practitioner in the field. the opposite parties believe that if Bolem test is applied to this case of the complainant, it will prove that the conduct of the opposite parties was well above the standard skill of ordinary medical practitioner. These case laws discuss about the differences of opinion or decision to take a decision among the skilled professionals especially doctors. In this complaint there is no such question and hence, these rulings are not applicable here.

 

36.           The opposite parties have stated in paragraph 17 of their written arguments that the 1^st opposite party had hand held the complainant throughout the entire process but unfortunately after long time of her discharge from MMM Hospital, she has met Dr. Sunil Shroff and has obtained a letter on 22.05.2017 under the guise of claiming insurance amount. In his letter, Dr. Sunil Shroff states that fistula is a result of the laparoscopic hysterectomy procedure. Hence, this commission concludes that the negligence of the 1^st opposite party has resulted in the excruciating pain, continuous urinary leak from the vagina and the formation of a ureteral vaginal fistula. Hence this commission decides that the opposite parties should be held responsible for the negligence of the 1^st opposite party. the 2^nd opposite party is vicariously liable for the negligence and errors committed by the 1^st opposite party. Hence, they should be liable to pay back the entire medical expenses including the bills raised by MMM Hospital where the curative surgeries were done.

 

37.           The last question as to whether the 1^st opposite party committed any negligence while performing the surgery has to be viewed seriously and has to discussed in detail and be decided. The complainant has submitted in her additional written version that “Author Te Linde’s authentic book on the subject “Operative Gynaecology”, 8^th edition, in page 795”, it is stated that “injury to the bladder base and vesical-vaginal fistula formation occurs in 0.5% 1% of total hysterectomy cases due to inadequate or traumatic mobilization of the bladder making the formation of fistula. In the same book, in page 1179, he has pointed out that vesicovaginal fistula is rare when gynaecology surgery is done properly. The complainant has mentioned in additional written arguments that the “National commission in Revision Petitions No. 3257 - 3259/2010” has held that “Prior to hysterectomy, the doctor should primarily treat the patient for Endometriosis for 28 days with medicines like injection Lupride or Danzole. The State Commission has held in “Dr.Sarojoini _Vs- Aruna 2022 (IV) CPJ TN (63)” that it is the duty of the doctor after hysterectomy to take post-operative test to ascertain whether the patient was suffering from VVF  as a result of hysterectomy.

 

38.           The above case laws are grossly applicable here because he 1^st opposite party has discharged the complainant on 22.05.2015, after just 2 days of the hysterectomy surgery. The point observed by the National Commission and the State Commission in the above cases is that the opposite party doctor cannot escape saying that that patient approached belatedly with VVF because of which curative surgery becomes inevitable. this is applicable to this case also. The 1^st opposite party should have given adequate post-operative care to the complainant before discharging her. A perusal of Ex. B-1 case sheets shows that no such examination was done by the 1^st opposite party to the complainant.

 

39.            The opposite parties have submitted an expert opinion as Ex. B-2 which was allegedly issued by Dr.Thiumalai Ganesan, Consultant urologist of Appollo Hospitals, Chennai but have failed to file his proof affidavit. Without his evidence before this commission, this commission rules out Ex. B-2. The complainant has mentioned in her additional written arguments that the Supreme Court in “Kishan Rao -Vs- Nikhil Super Specialty 2010 (iii) CPJ 1 (SC)” and the National Commission in “Thayira Begum &another -Vs- Padmini Nursing Home & Others 2017 (IV) CPJ 106 (NC)” have clearly ruled that expert opinion is not required to establish the negligence on the part of a doctor while performing surgeries such as laparoscopic hysterectomy. This commission deems that to decide the issue of negligence of the opposite parties, there is no need to rely upon the expert opinion since the Supreme Court and the National Commission in the above rulings have also expressed that expert opinion is not an essential criterion.

 

40.            The opposite parties rely upon the rulings “Bachhaj Nahar -Vs- Nilima Mandal & another, Civil Appeal No.5798, 5799/2008” decided by the Supreme Court, “Patel Roadways Ltd -Vs- Birla Yamaha Ltd, 2000 (4) SCC 91”, “Harish Kumar Khurana -Vs- Joginder Singh and others, 2021 (10) SCC 291” and “J.S.Kahlon -Vs- B.S.Bhatia, Appeal Case No.116/2005” decided by the Chandigarh State Commission. But unfortunately, all these rulings are not applicable to this complaint in anyway. Some portions in     Ex. B-1 the case sheets are not legible, in some sheets the fonts are not visible and, in some sheets, the words are neither clear nor readable. On page No.3 of Ex. B-1, something has been written in different hand writing for which no explanation has been given on the part of the opposite parties. The opposite parties strongly rely upon Ex. B-2 an expert opinion as alleged by them to defend their case. Except that there is no valid or strong defence on the part of the opposite parties.

 

41.            The complainant has mentioned that she consulted Dr.Tamilselvi, a urologist and then Dr.Sunil Shroff at MMM Hospital who later performed the curative surgery to her. The 1^st opposite party says that she only referred the complainant to those 2 doctors and was also present at the time of curative surgery along with Dr.Sunil Shroff. The opposite parties cannot escape from their liability simply because of the fact that the 1^st opposite party was present along with Dr.Sunil Shroff at the time of curative surgery. Therefore, this commission concludes that the complainant has proved the negligence on the part of the 1^st opposite party with necessary documentary and other evidences. The 2^nd opposite party hospital is vicariously liable for the negligence of the 1^st opposite party.

 

Point No.2

 

42.            Since Issue No.1 has been discussed in detail and decided above, this commission concludes that the opposite parties are to be jointly and severally held liable for the negligence of the 1^st opposite party while performing the laparoscopic hysterectomy surgery to the complainant. This commission deems that both the opposite parties should jointly and severally reimburse the complainant the hospital bills, the post-surgery expenses with interest and should pay a compensation of Rs.2,00,000/- towards mental agony caused to the complainant because of the negligence of the 1^st opposite party.

 

 

As a result, this commission passes the following ORDER:

 

(i).        The opposite parties are directed to pay to the complainant Rs.4,49,036/- towards the bill raised by Madras Medical Mission Hospital for the corrective ureteral re-implantation surgery with 6% interest from 20.05.2015 till the date of payment within 30 days from the date of receipt of this order.

 

(ii).        The opposite parties are directed to pay to the complainant Rs.55,121/- towards the bill raised by Madras Medical Mission Hospital for removing the catheter stent and Rs.50,000/- towards post-surgery medical expenses, both with 6% interest from 20.05.2015 till date of payment within 30 days from the date of receipt of this order.

 

(iii).       The opposite parties are directed to pay to the complainant Rs.2,00,000/- towards the mental agony, business loss and physical hardship caused to the complainant within 30 days from the date of receipt of this order.

 

         This Order was dictated by me to the steno, was taken notes in short-hand then typed in computer, then corrected and was pronounced by us in the open commission today, the twenty eighth day of February, 2023

 

        Member - I                                         Member – II                                     President

Documents marked by the complainant:

Ex.No.	Date	Description of the Document	Remarks
A-1	22.05.2015	Discharge summary of the complainant issued by the 2nd opposite party	Xerox copy
A-2	29.05.2015	CT Scan Report of the complainant – Multi-slice CT scan of the abdomen	Xerox copy
A-3	02.06.2015	Discharge summary issued by Madras Medical Mission Hospital, Chennai	Xerox copy
A-4	19.06.2015	Bill raised by Madras Medical Mission Hospital	Xerox copy
A-5	30.07.2015	Discharge summary issued by Madras Medical Mission Hospital, Chennai	Xerox copy
A-6	31.07.2015	Bill raised by Madras Medical Mission Hospital	Xerox copy
A-7	29.05.2015      to 22.03.2017	Post-surgery medical bills	Xerox copies
A-8	29.06.2015	Notice sent by the 1st opposite party	Xerox copy
A-9	12.09.2015	Reply Notice sent by the opposite parties	Xerox copy
A-10	-	Case report of International Journal of Reproduction, contraception, obstetrics and Gynaecology	Online            print out

Documents marked on the side of the opposite parties:

S.No	Date	Description of Documents	Remarks
B-1	-	Case sheets of the complainant	Xerox copies
B-2	14.03.2019	Expert opinion given by Dr.Thirumalai Rajan from Appollo Hospital, Chennai	Original copy

 

Witness examined by the complainant: Anandhi Ravichandran (Complainant)

Witness examined by the Opposite Party: Dr. Uma Ram (1^st opposite party)

 

Member - I                                             Member – II                                             President