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 30th day of January 2010 C.C.No.113/2000 A.C.Vijayavally, W/o.Balakrishna Kurup, Namath Poyil House, Complainant P.O.Paral, Thalassery. (Rep. by Adv.R.P.Remesan) Dr.Venugopal.P.R, Josgiri Hospital, Thalassery : Opposite party (Rep. by Adv.P.Mahamood) O R D E R This is a complaint filed under sectin12 of consumer protection act for an order directing the opposite party to pay an amount of Rs.1, 25,000/- as compensation. The case of the complainant in brief is as follows: The complainant was operated by the opposite party doctor for Fibroid uterus on 12.8.99 at Josgiri Hospital, Thalassery. Complainant had developed fever, vomiting, bleeding and respiratory troubles on the second day of operation. Though treatment continued for the illness there was no development. Moreover urinal problem also developed. Thereafter she was advised to go to the Baby Memorial Hospital, Kozhikode. But as per the opinion of doctors there she was taken to Medical College, Calicut on the same day itself. From Medical College, it was found that the kidney of the complainant was damaged due to the carelessness of the opposite party. Then she had undergone dialysis. It was found that the harm caused urinary system and ended in the acute renal failure due to the negligence in conducting the operation. So much of medicines including antibiotics on account of the negligent act of opposite party. The opposite party’s hospital is a private hospital and opposite party has been giving treatment on payment. Complainant was discharged from Medical College with an advice to continue treatment. After the discharge complainant met the doctor and explained everything showing the medical records. He then admitted his fault and agreed to compensate. But later he changed his mind and withdrawn from the offer. Since the complainant had suffered much physical and mental agony on account of the fault of opposite party the complainant is entitled to get compensation from the opposite party. She has suffered mental agony and physical pain. Hence this complaint. Pursuant to the notice the opposite party entered appearance and filed version. The contentions of opposite party in nutshell are as follows: the complainant was admitted at Josgiri Hospital, Thalasery on 9.8.1999 with a clinical diagnosis of Fibroid uterus with cervical Elongation. She had complaints of excessive bleeding P.V recurrent pain lower abdomen and back, tiredness etc. before her admission. She was advised Hysterectomy and she came prepared for surgery. After admission she as subjected to investigations and pre operative evaluation. Investigation revealed a low Haemoglobin level and a marginal increase of blood urea. She as shown to the physician, Dr.T.S.Rajasekhar, M.D for a pre-operative evaluation and he examined the patient on 10.8.99. As per his advice, blood was again tested for serum creatinine estimation, which was reported to be within normal limit. This was done in vein of slight increase in the blood urea, to rule out any gross renal pathology. The physician reported after evaluation that there was no absolute contraindication for surgery. A pre-anesthetic evaluation was also done by the Anesthesiologist. She was then taken for surgery, Hysterectomy to be done on 12-8-1999. Before surgery the procedure was explained to the patient and her relatives and also the possible complications such as post operative infection, excessive bleeding and the complication thereof that would occur after surgery. An informed consent was obtained and a total abdominal hysterectomy was done to her under spinal anesthesia. On opening of the abdomen, uterus was found enlarged to a size of 12 weeks. Uterus was removed carefully complete Haemeostasis was obtained and abdomen closed in layers. She was closely observed for 2 hours, before she was shifted to the ward. Post operatively she was given I.V fluid, antibiotics (inj.Augmentin) anti inflammatory and analgesics drugs. She was given two bottles of blood after cross matching continuous catheterisation was done to assess daily urinary out put which was within normal limit. On 12th and 13th she was alright and she started taking oral feeds. On 14.8.99, there was a rise of temperature and she was given inj. paracetamol and antibiotics continued. There was no distention of abdomen and no other discomfort. Fever settled with Inj.Paracetamol. She had no bleeding or vomiting as alleged in the complaint. However, on 15.8.99 she had again a rise of temperature and she had some breathing difficulty. On examination she appeared pale, but abdomen was soft. However her blood was tested and arrangements were made for consultation by physician. Investigation revealed very low Haemoglobin to 4.6 hm% blood urea 36 mg% which was normal. She was administered a bottle of compatible blood. She was examined by the physician on 16.8.99. On examination she was dysphonic (mildly) coffee ground stools present, and there was tenderness in the epigastrium. His clinical impression was, stress ulcer with Gastrointestinal bleeding leading to anemia. He advised higher antibiotics viz. Inj. Taxim 1 gm. 8th hourly IV, inj, Rantidine, Inj.Botropase, continuous Ryle’s tube aspiration and Blood transfusion and IV fluids. All these instructions were carried out and she was closely observed. On 17.8.99, she had complaints of breathlessness and Nausea. However pallor was present. Haemoglobin was again estimated and was found to be 9.3 gm%. She was given Inj.perinorm to control Nausea and one bottle blood was arranged to be transfused. Physician Dr.T.S.Rajasekharan was again consulted and he examined the patient on the same day. By that time the result of the blood test were available. Her serum Bilirubin was found to be raised viz. Total 3.7 mg% and Direct 2.2 mg%. . On examination of the Respiratory system, he noticed bronchial breathing and crepitations on the right lower zone of the chest. Bowel sound was diminished and wage tenderness epigastricium present. His impression was right Basal Orthostatic preumonia. He advised another antibiotics viz. Inj.Gentamycin 80 mg 8th hourly along with Inj.Taxim. He ordered for a chest X-ray which confirmed the diagnosis of Right lower lobe Pneumonia. At 10-15 P.M. he again examined the patient and was given Inj.Deriphyllin TV as advised. IV Fluids were continued and the patient was no willing for Ryle’s tube aspiration, the same was discontinued. There was a rise of temperature to 100 F towards night on that day. On 18.8.99 patient complained of vague pain abdomen and on examination her BP was normal Bowel sounds sluggish, and there was slight distension of abdomen. Her catheter was removed. Physician again examined her. He noted loose motions, nausea and bleaching patient was not taking oral feeds. On examination he noted no dehydration, urinary out put good, vital signs stable. Respiratory signs continued to be present on the right basal area. He advised Inj. Tinidazole 800 mg. TV daily along with other antibiotics. IV fluids were also continued and the patient was constantly observed. On 19.8.99 her sutures were removed and the wound was found to be clear and healed. On 19.8.99 at 6 P.M patient had shivering, fever and pain abdomen. The physician examined her and found that she was febrile and there was tenderness in the left Hypochondria. Spleen was palpable. She was jaundicedalso. However liver was not palpable. He ordered Inj. Paracetamol and to continue antibiotics and IV fluids. Blood was again tested. On 20.8.99, patient had mild fever. But she remained jaundiced. Physician again examined her and she complained loss of appetite and pain left auxiliary area. On consultation there was pleural rub on left axillary’s area. He advised blood urea estimation and continued same treatment with Antacid and Lansoprazole 30 mg. added. Blood urea was tested and found that it was 60 mg% which was high. So Inj.Gentamycin was stopped. Other antibiotics were continued. On 21.8.99 patient continued to have mild fever. She complained of pain in left auxiliary area, and was not willing for IV fluid administration. Her urinary output was good. She was given Inj. Dazolie 100 ml IV bid,Inj.Ceftriaxone 1 gm.IV Bid, Inj.Deriphyllin IV Bid and IV fluids after convincing her about the need of the drugs and IV fluid for her recovery order was given for the estimation of blood urea, creatinine and X-ray chest . On 22.8.99, patient was dysphonic, appeared toxic, and was complaining of Nausea, fever and chill. Blood test revealed, TC 20,000/cmm, ESR 125 mm/HR.Blood urea 146 m.mol, and Potassium 5.0 m.mol, X-ray chest showed improvement in the Basal Pneumonic consolidation, and right dome of diaphragm was raised as a result of improvement. As the blood urea and creatinine were raised the relatives were informed about the possible renal failure and the need for a dialysis. As there were no facilities for dialysis at Tellicherry, they were advised for reference to Higher Centre at Calicut to which they were not prepared at that time. At 7 P.M. on the same day, patient developed breathlessness, increased on supine position, and on examination there was tachycardia, she looked toxic and her urinary output was diminished. So the Senior Consultant Physician Dr.P.P. Vasudevan, M.D was consulted. She was given Inj. Lasix IV to improve the Urinary output. On the same day at 10.45 P.M the Senior Consultant examined her and his impression was septicemia with impending Acute Renal Failure. He advised nephrology consultation due to the impending Renal Failure. This was explained to the relatives. On 23.8.99, her condition remained same and the relatives were informed about the need of reference to a higher centre. Still they were not ready for it. The blood urea tested was found to be elevated to 159.2mg%. On 24.8.99 Blood urea again shot up to208 mg% and S.Creatinine 9.1 mg% Hb.came down to 8.7mg% S.Bilirubin total 3.4 mg% and Direct 2.9mg%. USG guided needle aspiration of abdomen was done and it yielded only serous fluid, thus ruling out collection of pus in the abdomen. Patient's relatives were compelled to take her to Calicut for Nephrology consultation and Dialysis to save her life and at 2 p.m they prepared to shift her to Calicut. Thus she was referred to Baby Memorial Hospital, Calicut with a diagnosis of Septicemia with impending Acute Renal Failure. Before she was transferred Dr.Thomas Mathew, Nephrologists was contacted and arranged for Nephrology consultation. The allegation of the complainant that the complications she developed after surgery was due to the negligence and carelessness of the opposite party in conducting the surgery were absolutely false and frivolous. Surgery was done with utmost care and caution. In spite of thick adhesions on the posterior part of the Uterus with bowels, the surgery was done after releasing all the adhesions. She had a huge fibroid Uterus and if she continued to carry the same, she would have lost her life due to recurrent excessive bleeding and other complications. It was very clear that there was no collection of pus inside the abdomen or bleeding from the site of operation. If the operation was done in a negligent manner the patient would have developed certain complications such as severe bleeding and shock. She developed certain complications but all those complications were tackled successfully. The patient’s relatives were reluctant to shift her to a major centre at the very onset of Uremia. When they were prepared to shift her to a major centre, she was immediately referred and her life was saved after subjecting her for dialysis. There was no surgical intervention necessary and it showed that there was no negligence in conducting the surgery. The wound was healed on the 7th day itself and it shows absence of sepsis at the site operation. Septicemia can be caused by any infection with the infective organism or its toxins entering in the blood stream to be carried to the organs like kidney, liver etc., causing damage to them. Post-operative injection can occur even at much advanced centers at the hands of experts, especially when the organism involved is resistant to the usual prophylactic antibiotics administered. The orthostatic pneumonia she developed during the post operative period was not the result of any negligence either on the part of the Opposite Party or the staff of the hospital. The Hepatic and renal complications were the result of pneumonia and she developed during the post operative period and immediately after it was diagnosed patient was put on higher antibiotics. Though pneumonia was controlled by, the antibiotics, its sequelac continued. The S.Bilirubin which shot upto 10.7 mg. on 20.8.99 was brought down to 3.4 mg% on 24.8.99, thus preventing Hepatic failure. She was referred to Calicut for dialysis before she developed complete Renal failure. The renal complication she developed was reversible and with dialysis the function of the kidneys was totally restored. Apart from dialysis no significant intervention was made at either Baby Memorial Hospital or Medical College hospital Calicut. Ultra sound scan reports of two different centers gave two different opinions. USG done on 25.8.99 at Safa Ultrasound scan centre, showed pelvic Abscess and Hydronephrosis with hydrouretors. Whereas the USG done at Doctors Scan Centre, on 27.08.99 showed bilateral Renal Pyelonephitis. The report of pelvic abscess was wrong as the fluid aspirated from Josgiri Hospital under USG guidance yielded only serous fluid. If pus was present the patient would not have improved without removing the pus collected. Renal phyelonephritis can be caused by the infection from the urinary tract and this can occur even in non-operated patients, especially in females. The common cause of phyelonephritis is the asconding infection from the urinary tract especially in females. Even the final diagnosis made at Medical College Hospital, Calicut was not definite about the occurrence of Acute Renal Failure the final diagnosis made at Medical College. The patient has undergone a major operation and surgery was difficult due to the thick adhesions present. All the adhesions were released carefully before the Uterus was removed. It is no uncommon that the bowels get injured during the release of adhesions and luckily she did not have any injury to the bowels. When she developed certain complications such as pneumonia, jaundice and Uraemia, she was taken care of by the competent physicians and with the meticulous management by a group of doctors and staff. She could withstand a travel of 2 to 2 ½ hours to Calicut and she was shifted from one institution to another. In spite of all these she could return to normal life with the function of the vital organs restored. It was time that the complainant met the Opposite Party after discharge from medical college but it is false to say that the Opposite Party agreed to pay compensation to her has admitted that the complication arose on account of his fault. There was absolutely no fault either in conducting the surgery or in managing her during the post operative period. The Opposite Party is not liable to pay any compensation to the Complainant. The Complainant now is leading a normal life with no complaints of recurrent bleeding. Kidney and liver is functioning normally. This was possible because she has undergone the surgery to remove the enlarged uterus due to fibroid and whatever complications she developed after surgery were tackled successfully. She returned to normal life only because of the appropriate treatment given to her. If it was the fault in conducting surgery complainant would have mentioned where the Opposite Party has committed the fault. The Opposite Party has treated her with utmost care and diligence. The Opposite Party has made a correct diagnosis of the disease of the complainant viz., Fibroid Uterus with elongated cervix and according to present day management Hysterectomy is the treatment for the same. If the risk of surgery is not undertaken, the life of the complainant would have been miserable. The Opposite Party is unnecessarily dragged before the Forum for no mistake on the part of the Opposite Party in treating the complainant. Hence to dismiss the complaint. Upon the above pleadings the following issues have been taken for consideration: 1. Whether there is any deficiency on the part of Opposite Party? 2. Whether the complainant is entitled for any remedy as prayed in the complaint? 3. Relief and cost. 1. The evidence consists of oral testimony of PW1, PW2, DW1, and Ext.A1 to A8, Ext.B1 and B1 (a). Issues 1 to 3 Admittedly the complainant Smt.Vijayalakshmi was operated by Dr.Venugopal at Josegiri Hospital, Thalassery. Complainant was admitted at hospital on 9.8.99 and she had undergone operation on 12.8.99. The main case of the complainant is that the complainant had developed fever, vomiting, bleeding and respiratory troubles on the second day of operation. Since there was no development out of given treatment she was advised to go to Baby Memorial Hospital, Kozhikode. But as per the pinion of doctors there she was taken to Medical College Hospital, Kozhikode. There it was found that the kidney of the complainant was damaged. It was also found that harm caused urinary system and ended in the acute renal failure due to the negligence in conducting the operation. The case of the Opposite Party, on the other hand, is that she was admitted on 9.8.99 with a clinical diagnosis of Fibroid Uterus with cervical Elongation. She had complaints of excessive bleeding P.V.recurrent pain lower abdomen and back, tiredness etc. before her admission. She was advised Hysterectomy and she came prepared for surgery. The investigation after admission revealed a low Hemoglobin level and a marginal increase of blood urea. Next day on 10.8.99 Dr.T.S.Rajaskhar, MD, the physician examined her. The physician reported that here was no contra-indication for surgery. Before surgery the procedure was explained to the patient and her relatives together with the possible complication such as post operative infection, excessive bleeding and the complication thereof that would occur after surgery. An informal consent was obtained and a total abdominal Hysterectomy was done to her under spinal Anesthesia. Uterus was removed carefully. She was closely observed for 2 hours, before she was shifted to the ward. Opposite Party further contented that on 12th and 13th she was alright and she started taking oral feeds. On 15.8.99 she had again rise of temperature and the same settled with injection. She had no bleeding or vomiting. On 15.8.99 she had again rise of temperature and breathing difficulty. Investigation revealed a very low Hemoglobin and she was administered a bottle of blood. On 16.8.99 she was examined by physician. His instructions were carried out and she was closely observed. On 17.8.99 she had complaints of breathlessness and Nausia. Hemoglobin was found to be 9.3 mg%. She was given Perinorm to control Nausea and one bottle blood was arranged to be transferred. Dr.Rajasekharan again examined and she noticed bronchial breathing and creptilatious on the right lower zone of the chest. His opinion was Right Basal Orthostatic pneumonia. Chest X-ray was taken and confirmed the diagnosis of Right lower lobe pneumonia. On 18.8.99 the patient complainant of vague pain abdomen. Physician who examined and advised Inj. Tinidazole 800 mg. TV daily along with other antibiotic. On 19.8.99 her Uterus were removed. On 19.8.98 6 PM patient had shivering, fever and pain abdomen. Physician examined and found she was fibrile and spleen was palpable. She was jaundiced also. He ordered Inj. Paracetamol and to continue antibiotic and IV fluids. Blood was also tested. On 20.8.99 patient had mild fever. But she remained jaundiced. On 21.8.99 also patient continued to have mild pain. She complained of pain in left auxiliary area. She was given injection Dazolie, Driphyllin and IV fluids. Order was given for estimation of blood urea, creative and X-ray chest. On 22.8.99 patient was dyspnoeic and complained of Nausia, fever and chill. Blood test revealed blood urea raised. Condition was explained to by-standers. They were explained the possible renal failure and the need for dialysis. As there was no facility for dialysis they were advised for reference to higher centre at Calicut which they were working at that time. On 22.8.99 at 7 PM patient developed breathlessness and her urinary output administered. Dr.P.P.Vasudevan, M.D., Senior Consultant Physician was consulted He had given Inj.Lasix IV to improve urine output. His impression was Septicaemia with impending Acute Renal Failure condition explained to relatives and need for reference. On 23.8.99 her condition remained same. Though relatives were informed about the need of reference to a higher centre they were not ready for it. On 24.8.99 Blood Urea shot up to 208 mg% S. Creatinine 9.1 mg%, HB came down to 8.7mg% S.Bilirubin total 34mg%. Patient’s relatives were compelled to take to Calicut for Nephrology consultation and dialysis to save her life and at 2 P.M. they prepared to shift her to Calicut. The Opposite Party further contented that the Opposite Party had made a correct diagnosis of the disease of the complainant, viz., Fibroid Uterus with elongated Cervix and according to the present day management Hysterectomy is the treatment for the same. She was referred to Calicut for dialysis before she developed complete Renal Failure. The renal complication she developed was reversible and with dialysis the function of the kidneys was totally restored. Apart from dialysis no significant intervention was made at either Baby Memorial Hospital or Medical College Hospital Calicut. Opposite Party also contented that the final report from both these Hospitals did not point out to any negligence or laxity on the part of the Opposite Party either in conducting the surgery or managing the complainant during the post operative period. The orthostatic Pneumonia she developed during the post operative period was not the result of any negligence of Opposite Party. The Opposite Party content that Hepatic and mental complications were the result of pneumonia she developed during the post operative period and immediately after it was diagnosed patient was put on higher antibiotics. There was absolutely no fault on the part of the Opposite Party either in conducting the surgery or in managing her during the post operative period. The chief affidavit filed by complainant states that on 12.8.99 she was operated for Fibroid Uterus. Second day of the operation she had developed fever, vomiting, bleeding and respiratory trouble. There was no development by Opposite Party’s treatment. Serious illness urinal problems also developed. Opposite Party’s treatment could not help to recover the disease. So that on 24.8.99 she was taken to Calicut Baby Memorial Hospital and there from Calicut Medical College. From there she was undergone dialysis. She further alleges that all there miseries caused only due to the negligence on the part of the Opposite Party in conducting the operation. The complainant Vijayavally was admitted in hospital on 9.8.99. Ex.tB1 case sheet shows that there was no contra indication for surgery. Operation was done on 12.8.99 for removal of Uterus. DW1 in his chief affidavit stated that before surgery the procedures and possible complication thereof that would occur such as post operative infection, excessive bleeding etc. were explained to patient and her relatives and after consent operation was done. He states that she was closely observed for 2 hours before she was shifted to the ward. Affidavit evidence in tune with version also shows that on 12th and 13th she was alright and she started taking oral feeds. Ext.B1 doctor’s orders on 13.8.99 reveal that 12th and 13th there was no complication. In the complaint she has no specific case that there was any complication on 12th and 13th. But the counsel for the complainant argued that different medicines were given on all these days. Post operative instruction shows that medicines were prescribed but complainant did not explain which medicines indicate the sign of complication. There is no meaning in saying that giving different medicines to a patient after an operation are indications of complication. It is quite natural that there will be different medicines after an operation. It can be seen that she had started taking oral feeds on 12th and 13th. Ext.B1 shows that investigation report records no complication on 12th. On 13th it was recorded urine output ‘good’. Complainant has no specific pleading that there was any complication on 12th and 13th. But in the chief affidavit filed by the complainant she has stated that the second day of operation she had developed fever, vomiting, bleeding and respiratory troubles. But Ext.B1 case sheet does not show any medicines prescribed for those complaints. The affidavit in terms of averments in the version filed by Opposite Party Dr.Venugopalan stated that post operatively she was given I.V.Fluids, antibiotics (Inj.Augmentin), anti inflammatory and analgesics drugs. She was given 2 bottles of blood and continuous catherisation was done to assess daily urinary output. Ext.B1 reveals that the second day of operation oral feeds started and urinary output good. It is not seen medicine prescribed for fever on 13th. So it is not correct to say that she had affected fever etc. on the second day of operation. The development of fever seen on 14.8.99 and Ext.B1 shows she was given inj.Paracetamol with continuation of antibiotics. The records reveal that doctor attended the patient and prescribed medicine. The only medicine prescribed newly was Paracetamol Inj.which reveals that, on that day she had not developed vomiting, bleeding and respiratory troubles etc. So that the complainant’s statement that she had developed vomiting, bleeding and respiratory troubles on the second day of operation cannot be accepted. It is seen increase of temperature and occurrence of respiratory complaint on 15.8.99. On 16.8.99 she was examined by the physician and also advised inj. Taxim 1gm, Ranitidine, Boliopase etc. Ext.B1 shows that instructions were carried out. The observation made by the physician was recorded in Ext.B1 as stress ulcer with gastro-intestinal bleeding leading to Anemia. It is also seen that antibiotics and other medicines were administered. Treatment chart also reveals two bottles of blood were transfused and continuous Ryle’s tube aspirations. On 17.8.99 the patient had complaint of breathlessness. Physician Dr.T.S.Rajasekhar was again consulted. He examined the patient. On examination his impression was Right Basal Orthostatic pneumonia. Ext.B1 reveals that he also ordered for chest x-ray and confirmed the diagnosis of Right lower lobe pneumonia. He examined her second time on the same day at 10.15 and given inj. Deriphyllin IV as advised. It is seen recorded ‘patient not willing for Ryle’s tube aspirations. The temperature chart shows gone up to 100F towards night. Physician examined patient and noted. Loose motion, Nausea and bleeding. It is also seen noted patient not taking feeds, any dehydration, and urinary output good, vital sings stable. Respiratory complaints seen recorded continued. Timidazole 800mg TV inj. Daily along with repetition of two other inj. Of antibiotics were prescribed by the doctor. Sutures were removed on 19.8.99 and wounds was found clean and healed. There was shivering and fever, abdomen pain and tenderness in Hypochondria. Page 11 of the Ext.B1 shows that, blood was examined. It was a good sign that the wounds was found clean and healed. But yellow discoloration was found on the day and remained jaundiced on 20.8.99. Page 22 of Ext.B2 shows that the physician who examined her on 20.8.99 advised for blood urea examination and page 12 shows that the examination revealed urea 60 mg. It was recorded in page 21 of the case sheet loss of appetite and that the patient was not willing for injection. Case sheet page 22 shows recorded patient was not willing for IV fluid administration. It is also seen recorded urea 100mg. Page 12 also confirms that urea was 100mg. It could be seen noted in page 22 that patient complained of pain in auxiliary parts. Inj. was prescribed viz., Dazolie, Driphyllin etc. Case sheet of 22.8.99 shows that patient was dyspnoei and complained of Nausea, fever and chill. The investigation report of Indian Medical Laboratory reveals that blood test was done on the day. Blood urea increased highly. Case sheet Ext.B1 page 23 shows recorded that patient’s general condition explained to attendants about the impending acute renal failure and requiring need for dialysis. It is also seen recorded that attendants not keen on going to higher medical centre immediately. The note on the case sheet on the same day shows the patient developed breathlessness at about 7 P.M. Urinary output was also decreased. It is seen recorded in case sheet that Dr.P.P.Vasudevan, M.D., the Senior Consultant Physician was called for examining the patient. At about 7.15 P.M. he prescribed for inj. Lasix IV. He has recorded his opinion as Septicaemia with impending AIR (acute renal failure). On 23.8.99 as per the case sheet condition seems to be remained serious same as the previous day and it is seen noted in the case sheet that – advised to take the patient for treatment at higher centre. On 23.8.99, also seen recorded that condition of the patient was explained to attendants. On 24.8.99 at 2 P.M. the patient was referred to higher centre for dialysis. Patient was taken to Baby Memorial Hospital, Calicut and from there to MCH, Kozhikode. The patient was admitted there as a referred case from Josgiri Hospital, Tellichery as a case of acute renal failure. The reference card issued by Medical College Hospital recorded diagnosis column as – Prospective? Acute Renal Failure. The case sheet Ext.B1 shows that Abdominal Hysterectomy was done to complainant under spinal Anesthesia on 12.8.99. Before conducting operation she was subjected to investigation and preoperative evaluation. On 10.8.99 the physician Dr.T.S.Rajasekhar examined her. After evaluation he reported on 11.8.99 that there was no absolute contraindication for surgery. It can be seen that a pre-anesthetic evaluation was also done by the Anesthesiologist. Complainant alleges that on the second day onwards the complainant had developed fever, vomiting, bleeding and respiratory troubles. Ext.B1 shows that Hysterectomy operation was done on 12.8.99 and post operative drugs were given to patient. No complication recorded on 13.8.99. It is seen that she was started taking oral feeds. Urine output also seen good. There was no bleeding or vomiting reported. Temperature chart, page 39 of Ext.B1 is also seen normal on 12th and 13th. That means the existing normal condition on 12th and 13th indicates operation was success. But there was rise of temperature on 14.8.99. She was given Paracetamol and temperature chart shows the fever was settled. Bleeding or vomiting was not seen reported on 14.8.99. But it could be seen rise of temperature on 15.8.99. Breathing difficulty for the patient also been recorded and seen advised for blood test and consultation by physician. DW1 explained in his proof affidavit hat investigation revealed very low Haemoglobin to 4.6 hm% blood urea 36 mg% which was normal. It was also stated that the patient was administered a bottle of compatible blood. Ext.B1 page 18 shows recorded the clinical impression of the physician as ‘stress ulcer with gastro-intestinal bleeding’. Physician examined the patient on 17th and found crepitation on her right chest and his impression was orthostatic pneumonia. Chest X-ray confirmed pneumonia. Physician examined her on 18th also. Apart from Antibiotics Tinedazole was also advised on the day. It was on the examination of 198.99 physicians found that the patient had yellow discolourisation as a sign of jaundice. Blood test on the same day revealed that Bill Rubin raised. However Ext.B1 page 20 reveals that sutures were removed on 19.8.99. Wound was found clean and healed. Taking into account the conditions prevailed in 12th and 13th and of the results of the wound it can be assured in the normal course the operation conducted by the Opposite Party was successful. 20th and 21st there was only mild fever but remained jaundiced. 21.8.99 patient was given injection Dazolie inj.Driphyllin on IV fluids. It was also ordered for estimation of blood urea, creatine and X-ray chest. Affidavit evidence shows that injection and IV fluids were given to the patient after convincing her need of the drugs and IV fluids for her recovery. Affidavit also stated in tune with version that the condition of the patient was explained to the bystanders. Further possible renal failure and the need for dialysis also were informed. Ext.B1 is also seen recorded that patient’s general condition explained to attendants about impending acute renal failure and requiring need for dialysis and Septicemia. Opposite Party also gives evidence by way of chief affidavit that 23.8.99 also her condition remained as same and the relatives were informed about the need for reference to a higher centre still they were not ready for it. Opposite Party continues to state further that on 24.8.99 blood urea again shot up to 208 mg% and S.creatinine 9.1 mg%, Heart beat came down to 8.7mg% S.Bitirubin total 3.4 mg% . USH guided needle aspiration of abdomen was done and it yielded only serious fluid, thus ruling out collection of pus in the abdomen. Affidavit follows that patients relatives were compelled to take her to Calicut for Nephrology consultation and dialysis to save her life and at 2 P.M. they prepared to shift her to Calicut. Thus she was referred to Baby Memorial Hospital Calicut with a diagnosis of Septicemia with impending acute renal failure. Before she was transferred Dr.Thomas Mathew, Nephrologists was contacted and arranged for Nephrology consultation. On going through the evidence it is not possible to say that Opposite Party was not attentive after hospitalization. Complainant has the case that the medicine given to the patient for the treatment “Stress Ulcer with the Gastrointestinal bleeding” without any consultation by a gastro entomologist. This diagnosis was done on 16.8.99. Patient was examined by the physician. Ext.B1 shows that on examination she was dysphonic (mildly), coffee ground stools present, and there was tenderness in the epigastria. The clinical impression of the doctor was recorded as “stress ulcer with the gastrointestinal bleeding leading to Anemia.” He advised inj. Taxim 1 mg. 8th hourly IV inj.Ranitidine, inj. Botropase, continuous Ryle’s tube aspiration and blood transfusion and IV fluids. Treatment chart reveals that all those instructions were carried out. Complainant has no case that this treatment was wrong. The concerned physician advised the above said instruction regarding treatment but not advised to arrange consultation with gastroenterologist. Complainant was of pinion to consult with gastro entomologist on the basis of the diagnosis done by the doctor who had prescribed the medicine. In other words, he himself treated the patient. If such consultation was necessary, advice should have been given by him to have consultation with a gastro entomologist as he is the best person To give advice on such aspect at such moment. Since it was not advised by the physician who has made diagnosis opposite party cannot be blamed for not consulting the gastroenterologist. It can only be possible to find fault with the opposite party only when complainant is succeeded in proving that the medicine prescribed by the physician were wrong and correct accepted standard medicine would have been prescribed if the gastroenterologist was consulted. Complainant also alleged that on 18th there was no diagnosis either by opposite party or by any other doctor. Ext.B1 shows that she was examined by physician and noted that she had loose motion and belching and she was not taking feeds. It was also noted that there was no dehydration and urinary out put was good, vital signs stable. He advised to give inj.Tinidazole IV daily along with other antibiotics. Treatment charger shows that IV fluids were also continued. The above facts show that the patient was closely attended by the doctors. Under such circumstances it is not possible to attribute such negligence on the part of opposite party. Complainant repeats the same allegation with respect to the treatment of 19.8.99. It was on 19.8.99 the sutures were removed and reveals that wound was found clean and healed. At 6pm she had shivering, fever and abdomen pain. The case sheet Ext.B1 shows that the patient was examined by the physician .Page 21 of the case sheet reveals that he found the patient was febrile. It was noted that there was tenderness in the left Hypochondria and spleen was palpable. And she was found jaundiced. Blood test was conducted. Blood was ordered to be tested for Liver function also. He also ordered inj. Paracetamol and to continue antibiotics. However, it is seen the surgical wound healed from the Josgiri Hospital itself. The opposite party has the case that on 22.8.1999 the condition of the patient was explained to the by-standers. Even if the possible renal failure and need for dialysis was explained and advised for reference to higher centre at Calicut they were not willing at that time. Senior consultant physician Dr.P.P.Vasudeven M.D was consulted. His impression was septicemia with impending Acute Renal failure. Condition was explained to the relatives and the need for reference. Opposite party contended that the relatives were not ready for reference on 23.8.1999 also even though the condition remains the same. The relatives were again asked to take the patient to Calicut for Nephrology consultation and dialysis to save the life of the patient. The relatives were then prepared to shift and so the patient was referred. The Opposite party submitted that the complication the complainant had during her post operative period was well accepted and often unavoidable. It is also submitted that Renal Complication she developed was reversible and with dialysis the function of the kidney was totally restored. The available evidence shows that the function of the kidney was restored after the dialysis. Records reveal that 13 dialysis were given in MCH. Complainant has stated in her chief affidavit that she could understand that her kidney was damaged due to the negligence of the Opposite Party in conducting the operation. Complainant also stated that it is not correct to say that Opposite Party has told her that there would be complication like belching etc. Complainant further says that it is not correct to say that she was asked by the Opposite Party to go to higher centre and she disagreed for the same on 22.8.99. It is not correct to say that she had been taken to Medical College Calicut because she was compelled by the Opposite Party. She got discharge on the basis of the intervention of her relatives. She also states that Dr.Vasudevan examined her in the Opposite Party’s hospital for want of the need of the complainant and her relatives what has she stated in the affidavit is thus “Dr.hmkp-tZ-h³ Fs¶ FXnÀ I£n-bp-sS-B-ip-]-{Xn-bn sh¨v ]cn-tim-[n-¨Xv Fsâ-bpT Fsâ-_-Ôp-¡-fp-sS-bpT Bh-i-y-{]-Im-c-amWv” If that be so Dr.P.P.Vasudevan, M.D. examined the complainant on 22.8.99. The Opposite Party’s case is that on 22.8.99 patient was dysphonic appeared toxic and was complaining of Nausea, fever and chill. The relatives were informed about possible renal failure and the need for a dialysis. At 7 P.M. on the same day patient developed breathlessness, increased on supine position and on examination there was tachy cardiac, she looked toxic and her urinary output was diminished. So the senior consultant physician Dr.P.P.Vasudevan, M.D. was consulted. The case sheet shows that Dr.T.S.Rajasekhar referred the matter to Dr.P.P.Vasudevan, M.D. at 7 P.M. on 22.8.99. Hence it is quite evident that Dr.Vasudevan examined her on 22.8.99. If the doctor was examined the patient as per the request of complainant and her relatives there is no doubt that the seriousness of the illness might have better known to the relatives of the patient. Case sheet clearly shows that she was again examined and advised to seek nephrology consultation. Under this situation the case of the Opposite Party that the relatives were informed the need for a dialysis and advised for reference to higher centre at Calicut as there was no facility for dialysis at Tellichery cannot be discarded. Since the complainant has relation with Dr.Vasudevan, M.D., there is no doubt that the complainant and her relatives were able to understand the position of the patient and seriousness of the illness. This is a situation warranted to take self initiative to shift the patient without further delay even without the advice of Opposite Party since the patient and her relatives were in touch with Dr.Vasudevan, M.D., who examined her on the day. PW1 in her cross examination deposed that ‘Dr.hmkp-tZ-h³ MD IqSp-X hnj-a-am-b-Xn-\p-ti-j-amWv t\m¡n-b-Xv. That means patient was aware that her condition was serious then. PW1 in her cross examination deposed that “10-mas¯ Znh-k-am-Wv t]m-bvs¡m-f-fm³ ]d-ª-Xv. Operation was conducted on 12.8.99. Then advice for reference is on 22.8.99, the day when Dr.Vasudevan, M.D., examined the patient. She has also deposed that “Scan sNbvXn«v InUv\n¡v hnj-a-ap-v. Hence the case of the Opposite Party, that the relatives of the patient were informed the need for dialysis and advised for reference to higher centre at Calicut since there was no facility for dialysis at Thalassery, can be believed. PW2 Dr.Rajan is an important witness. He treated the patient in MCH, Kozhikode. He has stated in the cross examination that “when renal problem is suspected it is the duty of the doctor to refer to higher centre or to do dialysis.” Ext.B1 page 23 reveals that patient’s general condition was explained to attendants about impending acute renal failure requiring need for dialysis and Septicemia. It is seen recorded that “Attendants not keen on going to higher medical centre immediately. It was on 22.8.99, the day when Dr.P.P.Vasudevan, M.D. examined the complainant in the Opposite Party’s hospital. Complainant has the case that Dr.Vasudevan examined her on the influence of the complainant and her relatives. The close contact of the complainant with Dr.Vasudevan shows that she had opportunity to understand the seriousness of her ailment on that day. She has deposed in her cross examination that Dr.Vasudevan examined her at a stage when her condition became more complicated. Under these circumstances knowing the seriousness of her ailment she should have been shifted to higher centre on the same day in the usual course of dealings. There was no such attempt on the part of the relatives of the complainant even if they have close contact with Dr.Vasudevan, M.D. To a pointed question “if the infection was not treated properly it will lead to Septicemia” put to the month of the witness PW2 answered “yes”. But complainant could not establish that Septicemia developed due to the improper treatment of the Opposite Party. PW2 doctor deposed in cross examination that “Septicemia can occur in any patient”. He further deposed that”anybody can develop Septicemia in spite of all precaution. It is one of the accepted complications about 1% cases”. On expression of such a pinion it is difficult to believe that the patient developed Septicemia due to the improper treatment of the opposite Party. He was of opinion that it may happen due to the omission of the suturing of bleeding vessel. But he did not say anywhere that there was improper suturing in the case of this Complainant. It is pertinent to note that PW2 doctor deposed in cross examination that “As per record there is no surgical intervention recorded”. That means there was no surgical intervention, in the course of treatment, done in MCH, Calicut. What has been deposed by the Complainant is also very relevant for the better assessment. She has deposed that Stitch FSp-t¡-n-h-¶n-Ã. Hm¸-td-jsâ apdn-hv- D-W-§n-bn-cp-¶p. This answer of the Complainant together with fact of absence of surgical intervention shows that there was no trauma to the patient. Ext.X1 is the summery sheet of treatment of Complainant from MCH, Calicut. It could be seen from Ext.X1 that there was no surgical intervention in the course of treatment underwent in Medical College, Calicut. No surgical repair advised at any stage of the examination. Dialysis was the significant intervention that has been done in MCH and it could be seen the function of the kidney was restored with the dialysis. In fact the case was mainly referred for want of dialysis. On the analysis of above, said facts it is difficult to attribute deficiency or negligence on the part of the Opposite Party. We are of opinion that Complainant failed to establish her case. It was also argued by learned counsel for the complainant that the operation was conducted by the Opposite Party without obtaining consent. Complainant has not taken any such pleading. No whisper anywhere in the complaint with respect to the consent. Opposite Party in his version filed in 2001 contented that “before surgery the procedures were explained to the patient and relatives and also the possible complications such as post operative infection, excessive bleeding and the complications thereof could occur after surgery. An informal consent was obtained and a total abdominal Hysterectomy was done to her under spinal Anesthesia” Complainant filed chief affidavit in the year 2004 but the above said contention has not been refuted so that the contention raised by the complainant is not legally sustainable. On the analysis of the above said facts it is difficult to attribute negligence or deficiency in service on the part of the Opposite Party. A doctor will be guilty of negligence only when he falls short of the standard of a reasonably skillful medical man. We are of pinion that the Complainant has failed to establish her case proving deficiency in service on the part of the Opposite party. It should also be considered that complainant has to establish negligence if any in the treatment and the burden of proof is heavily on the complainant to prove the negligence. In R.P.Sharma vs. Handa Nursing Home & another reported in IV (2003) CPJ 585(SCDRC-Delhi) it was held that “Deficiency in service has to be established, same cannot be presumed. Onus to prove deficiency in service lay heavily on complainant. The case III (1999) CPJ 9 (NC) has also been referred therein. It is true that the patient recovered from MCH, Kozhikode. It can also be seen that the reference of patient to higher centre was mainly intend to have dialysis and patient really regained by the dialysis. It is a fact that the patient was recovered from MCH, Kozhikode. But nobody knows how it occurred and what the real cause for the complication is. There is no documentary evidence to show how the complication caused does. What was held in K.K.Ummer vs. Jubilee Mission Hospital, Trichur & another is that “the real cause is unknown and it is not possible to blame the Opposite Party for the complication which arose after surgery. We, therefore, hold that no deficiency on the part of Opposite Party is established.” (III (1997) CPJ 432, CDRC Kerala). Complainant has no case that the prescribed medicines had any adverse effect. Complainant could not prove that the medicine prescribed happened to be responsible for the complication of the ailment or deteriorative to the condition of the patient. It is not proved that the complainant suffered on account of wrong treatment given by Opposite Party. A doctor will be guilty of negligence only when he falls short of the standard of a reasonably skillful medical man. Complainant failed to establish that there is negligence resulting from the failure on the part of the doctor to act in accordance with the medical standards in vogue which are being practiced by a reasonably competent medical man practicing the same trade. In Martin F.D’Souza vs. Hohd. Ishfaq reported in 1(2009) CPJ 32(SC) Hon’ble Supreme Court held that a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field”. It is further held that “Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of resipsa loquitor”. Thus on the basis of entire evidence on record we find the complainant has not been able to prove that Opposite Party was negligent in rendering service to the Complainant. Therefore, the issues 1 to 3 found against Complainant. In the result, complaint is dismissed. No order as to costs. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Reference letter issued by OP A2.Presscription issued by Baby Memorial Hospital A3.to A5.Ultra sound scan reports A6.Reference card A7.Cash bills A8.Discharefollow up record Exhibits for the opposite party B1.Case sheet of complainant maintained at Josgiri Hospital Witness examined for the complainant PW1.Complainant PW2.Dr.P.Rajan Witness examined for the opposite party DW1.Dr.Venugopal /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
......................GOPALAN.K
......................JESSY.M.D
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