By Smt. Padmini Sudheesh, President:
The facts of the case in brief are as follows: The complainant was working at Saudi Arabia from 1988 onwards. During 2003 May he had come on leave and his return ticket had booked to 17.7.03. Meanwhile feeling pain on right side of his abdomen he had consulted Dr. M.L. Dhathan, Consultant Surgeon, Thrissur on 11.6.03 and according to his opinion the complainant had undergone ultra sound scan and detected calculus in the right upper ureter. The complainant consulted 2nd respondent for further treatment. He had explained all above said aspects including return date to him. At first 2nd respondent had prescribed medicine for two weeks. After two weeks x-ray was taken and seeing the x-ray the doctor asked the complainant to undergo ureteroscopy for the removal of stone. The 2nd respondent had given assurance that he can remove the stone by way of ureteroscopy and the complainant can return abroad in time. So the complainant agreed for the same. For undergoing ureteroscopy complainant was admitted in the hospital on 5.7.03 early morning by deposing Rs.5500/-. Even though at 10 a.m. the complainant was taken to the operation theatre ureteroscopy was started only at 5 p.m. After the lapse of half an hour 2nd respondent told the complainant that he should undergo a major operation without any further explanation. In a hurry 2nd respondent obtained signatures from wife of complainant and his son-in-law. Then the 2nd respondent removed the right kidney of complainant by surgery. It was only after a few days of operation the complainant was informed of the removal of his kidney and he was discharged from the hospital on 16.7.03 with an advice to take rest for one month and for review. The removal of right kidney was resulted only due to utter negligence and carelessness on the part of 2nd respondent in applying ureteroscope into ureter of the complainant. Even though there was scan facilities to know the condition of ureter, kidney stone in advance the respondents-1 and 2 are keeping mum regarding why they did not conduct any previous tests. Due to negligence by 2nd respondent the complainant lost his job at Saudi Arabia and became disabled man. Hence hypertension was developed to complainant after surgery and there is every possibility to reduce normal functioning of his existing kidney. He spent a huge amount for his treatment and even now treatment is continuing. He lost all of his earnings. Lawyer notices were issued to respondents-1 and 2 and they sent reply notices with untenable contentions. As per the scan report there was no abnormalities to the ureter of complainant. The averment in the reply notice that 2nd respondent called another doctor Mr. P.G. Antony from West fort Hospital, Thrissur is unknown to complainant. If it is true there was no competent doctors in the first respondent hospital to overcome such situations. That would have resulted internal bleeding for long time till arrival of a specialist doctor from another hospital. Hence the complaint.
2. The counter averments of the 2nd respondent in brief are that it is submitted that the complainant came to this respondent with complaint of flank pain and USG diagnosis revealed right ureteric calculus and this respondent had advised the complainant to ureteroscopy (URS) + ESWL (Extra corporeal Shock Wave Lithotripsy) if necessary as the proper method to clear out the calculus. Since the stone in the case of the patient was small it might not be detected with C-Arm image intensifier and therefore ESWL alone might not be successful. ESWL is an uncertain technique and the patient may have to be subjected to ESWL 2-3 times and the complainant had no time for repeated ESWL sessions. ESWL results are better if the stone is in the renal pelvis than when the stone is in the ureter. This respondent’s reason for preferring URS was two fold, i.e. either to remove the stone via the URS or dislodge it and push it into the renal pelvis for better ESWL results. Due to financial want in meeting expense of ureteroscopy the complainant initially opted for conservative treatment and hydration and this respondent had prescribed proper medication according to his wish and asked him to review. The complainant reported after 12 days and x-ray was taken which revealed that the stone was in the same position and impacted. Intravenous Urography was done which again showed stone in the same position with mild obstruction to right kidney. URS + ESWL if necessary and possible was preferred for the complainant after proper diagnosis and after considering the different treatment options and ureteroscopy was done by exercising due diligence and care. The allegation that this respondent had given assurance to the complainant that he can remove the stone by way of ureteroscopy and the complainant can return abroad in time to join his job is false and denied. The complainant himself opted to get the stone removed by ureteroscopy. This respondent had conducted ureteroscopy with all aseptic precautions and with utmost care and caution. The allegation that the complainant was taken to operation theatre at 10 a.m. and ureteroscopy was started only at 5 p.m. is strongly denied. He was taken to operation theatre at 3.20 p.m. and ureteroscopic procedure started at 3.20 p.m. under spinal anaesthesia. Initial Cystoscopy was done and then right bulb ureterogram study of right ureter was done and assessed that ureter was narrow. The stone was not seen properly with C-Arm image intensifier due to its small size and overlying bowel shadows and transverse process of vertebrae. This respondent had taken all precautions and care in advancing the ureteroscope into ureter. This respondent had first done a Retrograde Ureterogram to study the right ureter and ureter was found to be narrow. Then 0.35 GW (guide wire) was indwelled and housed properly in the right ureter and pelvis. Ureteric dilatation was done using dilators. Upto No.7F dilators could be passed upto the level of the stone. No.8F dilator could be passed upto L4 level. Therefore No.7F ureteroscope was threaded over the GW so as not to cause injury to ureter and to avoid perforation. It was possible to pass it upto the stone and while getting ready for fragmentation with pneumatic lithotripter with C-Arm imaging due to irrigant flow the stone migrated into the renal pelvis. Now it was better seen with the C-Arm image intensifier and ESWL could be done after passing a DJ stent. While with all aseptic precaution this respondent was gently withdrawing the URS under C-Arm guidance leaving the GW there, unexpectedly avulsion of ureter had occurred probably due to friability. This respondent informed the unexpected complication that arose due to avlusion of ureter to the complainant and he agreed to undergo the procedures necessary to overcome the complication. This respondent came out of the operation theatre and met Mrs. Dayanandan and the son-in-law and discussed the problem with them and the necessity for an emergency exploration. They were told that whatever possible repair would be tried and if repair was found not possible, the kidney may have to be removed as a life saving measure and to prevent further severe complications. They were convinced and gave consent for any life saving procedure. Immediately this respondent contacted RW2 an expert in endo urology and renal transplant surgery and with his help an uneventful kidney exploration was done under general anaesthesia and the kidney was inspected. It was seen that the ureter had been avulsed from the renal hilum and renal pelvis was also fully torn and there was minimal oozing of blood from the torn renal pelvis. Since the ureter had been torn off the kidney at its hilum level no repair work was safe and would lead usually from one complication to another and with the concurrence of RW2 arrived at a conclusion to conduct simple nephrectomy as the safest procedure to save the complainant. All these facts were clearly and properly informed and explained to the wife and son-in-law of the complainant. The avulsion of ureter was not due to any negligence or carelessness on the part of this respondent. Only on exploration it was finally found that no successful and safe repair was possible and nephrectomy had to be done. It was finally decided in joint consultation with RW2. The allegation of the complainant that the removal of the complainant’s right kidney was resulted only due to utter negligence and carelessness on the part of this respondent in applying ureteroscope into ureter of the complainant is unfounded and highly ill-motivated and denied. The allegations that the complainant lost his job at Saudi Arabia and became disabled man are not true and denied. The allegation that hypertension was developed to the complainant after surgery and there is every possibility to reduce normal functioning of his existing kidney is not correct and denied. Removal of one kidney does not disable a person or cut short expectancy of his life. All necessary precautions and accepted methodology as ordinarily practiced by a qualified Urologist in doing ureteroscopy was followed by this respondent and avulsion of the ureter occurred in spite of these measures of reasonable caution and can only be due to the abnormal friability of the ureteral tissue in the case of the complainant. There is no negligence or deficiency in service on the part of this respondent. The amount claimed in the complaint is highly exaggerated and without any basis. The complainant is not entitled to get any amount from this respondent. Hence dismiss.
3. The counter of 3rd respondent is that this respondent admits that this respondent has issued a professional indemnity medical establishment policy in the name of Elite Mission Hospital, Koorkenchery, Thrissur for a period from 20.1.03 to 19.1.04. The total limit of indemnity under the policy for any one incident is only upto Rs.2,50,000/- and total limit of liability for any number of incidents per year is only upto 10,00,000/-. If the Forum finds this respondent liable to pay compensation it shall not exceed Rs.2,50,000/-. It is known that the kidney was removed as a life saving measure to prevent severe complications. No deficiency in service was committed by respondents. Nephrectomy was conducted with the help of Dr. P.J. Antony under all aseptic precautions with due care and caution. No claim is received to this respondent regarding the alleged incident. No notice is also sent to this respondent. Hence dismiss.
4. The first respondent remained exparte.
5. The points for consideration are:
(1) Whether there was any negligent act on the part
of respondents-1& 2?
(2) If so, reliefs and costs.
6. The evidence adduced consists of oral testimony of PW1, PW2, RW1, RW2, Exts. P1 to P7, Exts. R1, R2, Ext. X-1 and X-1(a).
7. Points: The complaint is filed alleging negligence on the part of RW1 the 2nd respondent while conducting ureteroscopy to complainant. It is the case that due to the careless and negligent application of ureteroscope by RW1 the ureter was broken from the base of the kidney. RW1 was unable to repair it and he removed the right kidney of the complainant by conducting a surgery. According to the complainant, nephrectomy was resulted only due to the negligence and carelessness on the part of RW1. The contention of RW1 is that there was no negligence on his part and he has done the standard procedure.
8. In order to prove the case of complainant he is examined as PW1 and an expert from Medical College Hospital, Thrissur is examined as PW2. He is a Consultant Urologist in Thrissur Medical College. According to him, this is a case of avulsion of right ureter from the Pelvis of right kidney while conducting ureteroscopy for right ureteric stone. A question was asked to him that in the normal condition while conducting ureteroscopy avulsion or rupture of ureter will not happen. His answer is in normal ureter it may not occur. Then it is to be discussed the question “normal ureter”. It is his version that most often ureters with stone along with infection will be having inflammation or narrowing or fibrosis of ureteric tissue. With regard to the normal condition nothing has stated by respondents. The only evidence before us is the deposition of PW2. It is the version of the respondents that initial Cystoscopy was done and then right bulb ureterogram study of right ureter was done and assessed that ureter was narrow. So the respondents also admitted that the ureter was found to be narrow and it can be understood that the size of ureter varies man to man. In this case the ureter was narrow and admitted by respondents also.
9. The complication arose when avulsion of ureter from kidney occurred. It is the view of PW2 that from the records available there is some narrowing to the ureter and this may cause avulsion while withdrawing the ureteroscope. He also stated that no other reason stated in the records. So it is to be realized that the avulsion was caused while withdrawing ureteroscope from the ureter. It is undoubtful that before conducting ureteroscopy the size of the ureter should be assessed. According to PW2 the size of the ureter can be found out while conducting bulb ureterogram test. He adds that only after conducting ureterogram the procedure will be continued. He categorically stated that if ureter was comparatively narrow application of ureteroscope into the ureter will be dangerous to patient.
10. RW1 is the treated doctor and he deposed that in the normal conditions while conducting ureteroscopy no avulsion of ureter will occur. During cross examination for complainant to him it was asked that due to negligent withdrawal of ureteroscope while conducting ureteroscopy avulsion of ureter may happen. He answered that forceful withdrawal of ureterscope especially in an abnormal ureter can result in avulsion. He also answered to the question that by forceful or negligent withdrawal whether avulsion will occur to normal ureter? He answered, in normal ureter no. In this case the ureter of complainant was not normal. As submitted by both it was narrow. RW1 also stated that the mere presence of stone will make the ureter temporarily abnormal and they will get back to normal stage after 2-3 weeks of removal of stone. So it is clear that the existence of stone does not make a ureter abnormal. It makes ureter abnormal only for the time being till the removal of the stone. But the ureter of complainant was abnormal because of its size. So it was the duty of RW1 to opt some other method instead of ureteroscopy. In the case sheet which is marked as Ext. X-1 no specific reasons are stated. But it is stated the narrowness of ureter. Before starting ureteroscopy bulb ureterogram test has been done by RW1. So as stated by them the size of ureter was assessed before the ureteroscopy.
11. RW2 is the expert examined in support of the view of RW1. He is a Urologist and Surgeon. According to RW1 he is the doctor who was called by RW1 for a second opinion, further management and help to RW1. It is his opinion that the avulsion of ureter during ureteroscopy can happen as a complication. He deposed that “ureteroscope withdraw IIn Malayalam words)
Excess force (In Malayalam words) ureter
(In Malayalam words) .”
According to him also to conduct ureteroscopy to a narrow ureter it is risky but have to take precautions. He agreed during cross examination that conducting ureterscopy into a narrow ureter is difficult. It is also his version that the reason for avulsion is not mentioned in Ext. X-1 case sheet. It is his opinion also that in a narrow ureter conducting of ureteroscopy is highly difficult and risk. So it is to be realized that without taking adequate precautionary measures and by negligently ureterscopy was done to the complainant.
12. It is stated in Ext. X-1 in the page dt. 5.7.03 that ureter avulsed on removal of ureteroscope. So it is very clear that the avulsion was caused only because of the force used for removing ureteroscope. Then according to the expert opinion and also admitted by RW1 the only method was removal of kidney because it was unable to repair as admitted by RW1.
13. It is the case of complainant that due to careless and negligent application of ureteroscope by RW1 the ureter was broken from the base of the kidney and unable to repair it and he removed the right kidney of the complainant by conducting nephrectomy. It is the opinion of RW2 Dr. P.G. Antony that there is no need to remove kidney for removal of ureteroscope in ureter. But it has happened in this case and the reason stated is that the avulsion of ureter cannot be repaired and the only way to save the life of complainant was removal of right kidney.
14. The complainant has also the case that the consent taken from the relatives was not properly. It is the version of RW1 that he came out of the
operation theatre and met Mrs. Dayanandan and the son-in-law of the patient and discussed the problem with them and the necessity for an emergency exploration. They were told that whatever possible repair would be tried and if repair was found not possible the kidney may have to be removed as a life saving measure to prevent further severe complications. The consent is marked as Ext. X-1(a). It is stated in Ext. X-1(a) that since the ureter was very tight ureteroscope is stuck in the ureter and is not possible to withdraw. The time written is 4-45 p.m. There is no mentioning of avulsion of ureter. If avulsion of ureter has happened as a result of complication it should be exposed to the relatives since complication is not a negligence. But it was not told to the relatives because it was happened only because of the negligence on the part of RW1. During cross examination RW1 justified the non-mentioning of avulsion of ureter in Ext. X-1(a) that because he wanted to explore and confirm and also wanted to do the best and least morbid procedure repair for the patient. But at that time the doctor suspected avulsion of ureter. But as per Ext. X-1(a) suspected avulsion of ureter is not informed to the relatives. It is stated by RW2 also that the avulsion of ureter is confirmed by open exploration. So the case of complainant that no proper consent was obtained is seen true. It is stated in Ext. X-1(a) that the removal of kidney is necessary but there is no mentioning of stuck of ureteroscope in ureter. The time mentioning is 4-45 p.m. but the complainant suspect that “45” written later in Ext. X-1. The time of getting consent as 4-45 p.m. is incorrect. The time of arrival of RW2 is not mentioned anywhere in the records. In the chief affidavit it is undoubtedly stated by RW2 that immediately he arrived at the hospital he and RW1 discussed about the matter and during examination he understood that avulsion has happened. It is his version that during exploration he has reached there. During examination he stated that suspected avulsion of ureter is not informed to the relatives according to Ext. X-1. So the consent taken from the relatives is not proper consent.
15. So according to the complainant the removal of right kidney was resulted only due to the negligence and carelessness of RW1 Doctor. But the respondents stated that there was no such negligence or carelessness and standard procedure has been adopted by RW1. They also stated that when complication arose RW2 was called for a second opinion. It is his opinion that by taking sufficient precautions ureteroscopy can be done even in narrow ureter. During examination he repeated the taking of precaution again and again. But contrary to this RW1 deposed that even if precautions are taken avulsion can be occurred. So it is undoubtedly clear that negligence was happened on the part of RW1 while conducting ureteroscopy. If the ureter was narrow before conducting ureteroscopy he has to opt for other methods. It was not done. It is stated in the argument note filed for RW2 also that after cleaning cystoscopy was done and then ureterogram was done which revealed relatively narrow ureter were not easily distensible. The procedure adopted is stated in detail in the argument which is stated in the counter also. But according to PW2 the size of the ureter can be found out by conducting bulb ureterogram test. According to RW1 it has been conducted prior to the ureteroscopy. So it is clear that the size of ureter has been assessed before conducting ureteroscopy. So it is to be realized that RW1 Doctor carelessly applied ureteroscope and which caused all the complications. So he is liable to pay compensation to complainant.
16. The complainant was working at the time of conducting surgery in Saudi Arabia and according to him his return plain ticket had booked to 17.7.03. Meanwhile pain felt to right side of abdomen and consulted the doctor. On 5.7.03 the ureteroscopy has been done and the cause of action for the complaint has arisen. So according to him his job has been lost due to the negligence of respondents-1 and 2. He claims that he was working in Saudi Arabia for a monthly salary of Rs.20,000/-. The passport produced by complainant would show that he was working in Saudi Arabia. It would show that he was allowed to leave within two months from 27.7.03 and the re-entry period is not mentioned and remains blank. But it is proved that he was working in Saudi Arabia. The discharge summary which is marked as Ext. P1 contained the writings that manual labourer in KSA. So it is proved that the respondents01 and 2 were aware that the complainant was a labourer in Saudi Arabia. It is his case that he is drawing salary of Rs.20,000/- but there is no evidence to prove the same. But the loss of kidney without the fault of him and during the medical treatment of a doctor definitely entitling him a reasonable compensation. As stated by complainant due to the negligent treatment by RW1 he has lost his kidney and became a disabled man.
17. The 3rd respondent is the Insurance Company and the company filed their version by admitting that they have issued a Professional Indemnity Medical Establishment policy in the name of first respondent hospital for a period from 20.1.03 to 19.1.04. The total limit of indemnity under the policy for anyone incident is only upto Rs.2,50,000/-. So it is their request that if the Forum finds they are liable to pay compensation, the liability shall not exceed Rs.2,50,000/-. Ext. R2 is the policy copy produced by 3rd respondent in which the limited liability stated as Rs.2,50,000/-. In this case the complainant claims Rs.5,00,000/- as compensation for loss of right kidney while undergoing ureteroscopy. He also claims Rs.5,00,000/- towards the damages for loss of job, inconvenience etc. This is a case where due to the negligence of a doctor a kidney has been lost to a human being. So he is entitled to get an amount of Rs.5,00,000/- as compensation.
18. In the result the complaint is allowed and the 3rd respondent is directed to pay Rs.2,50,000/- (Rupees two lakhs and fifty thousand only), the 2nd respondent is directed to pay Rs.2,00,000/- (Rupees two lakhs only) and the first respondent hospital is further directed to pay Rs.50,000/- (Rupees fifty thousand only) to the complainant with costs Rs.1000/- (Rupees one thousand) each by respondents-1 and 2 within two months from the date of receipt of copy of this order. If the order is not complied within the stipulated period the respondents would be liable to give interest at the rate of 12% per annum for the amount which they are liable to pay from the date of complaint till realization.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 21st day of June 2011.
