Tamil Nadu

StateCommission

FA/267/2011

DR. INDRA NAMBIAR - Complainant(s)

Versus

JANAKI - Opp.Party(s)

ANAND ABDUL VINOD

01 Apr 2015

ORDER

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

BEFORE        Thiru. A.K.ANNAMALAI            PRESIDING JUDICIAL MEMBER 

                        Tmt. P. BAKIYAVATHI                                                    MEMBER

 

F.A.NO. 267/2011

(Against order in  C.C. No.42/2007

DCDRF, Nilgiris @ Uthagamandalam Dated 21.10.2010.)

 

                                                       DATED THIS THE 1^st DAY OF APRIL 2015

1. Dr. Indra Nambiar

Parvathi Medical Centre

Ootacamund,

The Nilgiris

 

2. Dr.Sheela Nambiar

Parvathi Medical Centre

Ootacamund,

The Nilgiris                                             ..Appellants/opposite parties

                                       Vs

Smt. Janaki

Door No.21

HPF, Indu Nagar

Ootacamund,

The Nilgiris                                             ..Respondent/complainant

 

Counsel for the Appellants/opposite parties  : Anand, Abdul, Vinoth Associates

Counsel for the Respondent/complainant     : Publication effected (called absent)

 

       The Appellants are the opposite parties. The District Forum allowed the complaint. Against the said order, the Appellants/opp.parties filed this appeal praying to set aside the order of the District Forum,Nilgiris in CC.No.42/2007 dated 21.10.2010.

 

          This appeal coming before us for hearing finally on 23.3.2015 upon hearing the arguments on both side, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order. 

                                   

                                   ORDER

THIRU.A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER

1.          The opposite parties are the Appellants.

 

2.         The complainant Tmt. Janaki has been suffering from severe abdominal pain and profuse bleeding per vagina and has approached the opposite parties 1 and 2, in their hospital, Parvathi Medical Centre. The complainant has been advised to undergo abdominal hysteric-to-my operation for menorrhagia and admitted in their hospital on 21.5.2007, to undergo the operation. After two days preparation for operation, operation has been performed to the complainant on 23.5.2007,  by the first opposite party. At the time of operation, while dissecting the adhesion to the mesentery, the mesentery has been torn and about 1 feet bowel has been devascularised. Immediately, the fist opposite party has called another surgeon and another surgery has been done and the abdomen has been closed in layers.

3.        After surgery, the complainant has been kept on empty stomach. The first opposite party has advised the complainant to take liquid diet, on the 6^th day of operation. Accordingly, liquid diet has been discharged through the tube connected from DT site. Immediately, complainant’s husband has called the first opposite party. The first opposite party has advised the complainant to undergo another operation due to some mistake taken place in the operation carried out by the opposite parties. Since the operations are not successful, the complainant’s husband has decided to shift her to K.G.Hospital at Coimbatore, for better treatment and to safeguard his wife’s life. Accordingly the complainant has been shifted to K.G.Hospital on 29.5.2007 and admitted in I.C.U. Operation has been done by Dr. Shanmuga Sundaram and finally the complainant has been discharged on 8.6.2007 and thereby since even after the 2^nd operation, the complainant is not in a position to do household work and has to be looked after by her husband and spent Rs.1,50,000/- at K.G.Hospital. Apart from the amount of Rs.9000/- already spent at the opposite party’s hospital after issuing a legal notice on 6.8.2007 claiming compensation of Rs.4,46,134/- for which the false reply was given and thereby a consumer complaint came to be filed claiming the amount with cost.

 

4.       The opposite parties 1 and 2 denied the allegations except to admit the treatment given to the complainant hysterectomy surgery on 23.5.2007 and only at the time of surgery, certain complications have been found the uterus enlarged to 14 to 16 weeks size of pregnancy and mesentery and omuntun has been carefully desected. The Uterus, tubes and ovaries have been clamped, cut and ligate vault opened and the uterus have been removed. On removing the self retaining refractors, the mesentery has been found bleeding. The bleeding has been arrested by clamping the bleeding vessels, to stop the blood loss which could be life threatening. On further inspection and examination a part of the small intestine has been found to be devascularised. On seeing the unexpected complication, the 1^st opposite party, by way abundant caution called in, immediately Dr. Mrs. Stella Kesari, the Super specialist in surgery in hysterectomy and anastamosis (removal of the affected part and rejoining the ends) has been done. This is not another separate surgery but is a continuation of the original one, to set right the unexpected medical surgical complication.  The devascularisation of the part of small intestine is due to unexpected accidental, to the mesentery, due to severe adhesions. The subsequent surgery resection of the affected portion of small bowel and reanastamosis is a normal surgical procedure and is totally justified. In a planned surgery, involving the gut (intensive) patient has to be prepared preoperatively with some drugs to kill the intestinal pathogems (wec Interia) and giving enema for removal of stomach contents through Ryles tube. Failure of anastamosis site from infection, in an emergency procedure with intestine is a known and accepted complication that the 1^st opposite party never told that there was a mistake in the operation process, the opposite parties have offered to do reanaestamosis with the help of Dr. Stella Kesari without causing additional expenses to the complainant. The complainant’s husband refused to accept the same and have been referred to K.G.Hospital, Coimbatore where she had undergone the same, re-anastamosis which could have been done at the opposite party’s hospital itself without any additional expenses after that two weeks later, the complainant along with some anti-social elements came to the opposite party’s hospital and demanded Rs. 2 lakhs towards the expenses of K.G.Hosptial and they have not paid it Hence a false complaint came to be filed.

 

5.      On the basis of both side materials and after an enquiry after  examination of the complainant as PW1 and the 1^st opposite party as R.W.1 and after obtained Medical Board reports under Ex.C.1, the District Forum allowed the complaint by finding deficiency in service against the opposite parties directed them to pay a sum of Rs. 52,000/- towards medical expenses and Rs.10,000/- as compensation and also with a cost of Rs. 3000/-.

 

6.          Aggrieved by the impugned order, the opposite parties have filed this appeal contended that the 1^st opposite party having qualified gynaecologist with 40 years experience performed the surgical proceedings to the pathological site is appropriate and that adhesions of the mesentery to the uterus are not uncommon finding. Dissection and release of the adhesions during the procedure is a viable option in such cases. Risk accidental injury to the blood supply of the bowel is a recognized complication of the maneuver”.     The medical Board also given report in favour of the opposite parties and without applying mind, the District Forum erroneously concluded that the opposite parties are in negligence, the complainant had not adduced any direct medical evidence against the Appellants/opposite party to establish medical negligence and the expert committee held that there was no prima facie case of the medical negligence. The Forum had decided the matter on surmises and conjectures. This is against the principles of the Supreme Court case as laid down in Thomas Mathew’s case. Hence the appeal is to be allowed.

 

7.          When the appeal is taken up for the arguments, the Respondent not appeared to participate in the proceeding, inspite of notice effected by publication also and thereby remained absent. Hence on the basis of the appellant side argument, and the materials placed before us, the order being passed on merit from the material available and as per the contention of the appellant and arguments it is not in dispute that the complainant undergone total abdominal hysgterectomy with Bilateral Salpingo copherectomy on 21.3.2007 as admitted by the appellant themselves.

 

8.         From these details, it is clear that at the time of surgery, because of un-expected complications as alleged the specialist surgeon Dr. Stella Kesari was called for anastamosis of the intestine and also small intestine was devascularised due to un-expected accident to the mesentery due to the removal of adhesion on the mesentery, the subsequent surgery affected the small portion of bowel is normal surgical procedure is totally justified and thereby it is clear that they there was an un-expected complication which caused another procedure or surgery mentioning as anastomosis with mesentery and even after that, after the 6^th day of liquid diet given which came out through the D.T.pipe reported food discharge and this is said to have been due to non-healing of anastomosis site. The complainant by refusing the offer of the opposite party for the surgery for the reanastomosis to set right the defects got admitted at K.G.Hospital, Coimbatore where it is bound to have been set right by spending additional expenses as per Ex.A.3, medical bills to the extent of Rs.52,000/-. On perusal of the discharge summary of K.G.Hospital under Ex.A.2. It is pointed out as follows:-

   DIAGNOSIS:

1. Post hysterectomy
2. Post bowel resection and anastomosis
3. Anastomotic leak with secondary peritonitis

PROCEDURE:

     Laparaotomy and right hemicoloectomy with ileocolic anastomosis done.

HISTORY

      This patient is admitted with complaints of diffuse abdominal pain, discharge of food material and faces through DT site. Patient had undergone abdominal hysterectomy on 23.5.2007 for Menorrhagia. Per operatively there was devascularization of small bowel segment due to adhesion to mesentery, small bowel resection and anastomosis done. Kept NPO and on Ryles type aspiration till 6^th day. Started on oral fluids on 6^th POD, developed drainage of food material and faeces at drain site and under the procedure it is mentioned as follows:-

 

       “Under general anaesthesia, patient in supine position, a midline incision was made and abdomen opened in layers. Found leakage from the previous anastomotic site from posterior aspect situated just one inch nearer to ileocaecal junction. As it was not possible to do reanastomosis at the same site as it may lead to vascular insufficiency around the anastomotic site, right hemicolectomy done. Peritoneal reflection over the caecum, ascending colon and right 1/3 of transverse colon excised. All the mesocolong where peritoneal reflection done one inch from the anastomatic site. Peritoneal toileting done. Rent made in mesentery of transverse colo and same thing in ileal site. Ileocolic anastomosis done in two layers by using 2-0 silk. Two 32 F tubes kept in right lumbar regions fixed with 2-1 nylon upper one near the anastomotic site and lower one in pelvis. Rent made in the mesentery closed by using 2-0 silk. All the other intestinal segments checked and no abnormality found. Then all the segments kept in order. Rectus closed by using nylon loop. skin closed. perfect haemostasis secured throughout the procedure. Betadine dressing done”.

 

 9.         From these details also, it is clear in the K.G.Hospital, the General Surgeon opined that there was post hysterectomy and post bowl dissection and anastamosis procedure with secondary peritoneal when the contention of the opposite party is considered, that after the surgery and after complaining of leakage of fecal matter through the D.T passage, they have offered for reanastomosis free of cost which was done at K.G.Hospital and as per the contention of the appellant that could have been done by themselves as it was not permitted by the complainant as already the complainant undergone one surgery with opposite party hospital which caused the trouble even after six days, there was complication which could have been avoided if at the finest time itself, if the opposite parties have performed the surgery and reanastomosis with mesentery in spite of having specialist surgeon subsequently who have done the same is disclosed that the opposite parties have not performed their duty in  a careful manner at the first instance itself which amounts to negligence and deficiency in service. The District Forum in this regard, held by relying upon the ruling reported 2005 Supreme Court and also 2009 (2) CTC 252

   Martin F.D’Souza                ..Appellant

                     Vs

Mohd. Ishfaq                         ..Respondent

 

   observing to prove the medical negligence, it must be shown that the Doctor did something which in the given facts and circumstances. No medical practitioner in his ordinary senses could have been done or failed to do so and in this case, the opposite parties are not possessing the requisite skill to do the dissection of adhesion to the mesentery for the opposite party being themselves done.  The opposite party had failed to call Dr. Stella Kesari, Super Specialist in resection and Anastasias for dissection of the adhesion to the mesentery, even though Dr. Stella Kesari was very well available in the opposite parties’ clinic and the mistake in damaging 1 feet of the small intestine has occurred as narrated in the earlier.

 

10.          The learned counsel for appellant argued that it is very well found on record Dr. Stella Kesari done anasthematic mesentery process and the District Forum erroneously mentioned as she is not available. On perusal of the District Forum order, it is mentioning the same only to suggest even though the super Specialist Dr. Stella Kesari was very well available at the time of performance of hysterectomy surgery without availing of service at the time and subsequently in the middle of process alone by finding the complications she was called for and attended but in the discharge summary under Ex.A.1 her name was not mentioned and pointed out an another surgeon was called for meaning  Dr. Stella Kesari.

 

11.        The District Forum has pointed out that she was not examined before the Forum and only the 1^st opposite party has deposed before the Forum and the District Forum also called for expert committee’s report marked as Ex.C.1 in which it is mentioned,  “no evidence to support a prima facie case of medical negligence, the treatment prescribed by concerned doctors”. On perusal of Ex.C.1, it is found that they have perused records from K.G.Hospital to show that, “the leak was present from the posterior part from the anastomosis in the distal ileum, an area usually designated as high risk area for an anastomosis. and in 3^rd  para it is mentioned, “the case sheet of the particular case, treated at Parvathi Nursing Home is not attached. Hence the day to day general condition, investigations, anaesthetic assessment and preparation particulars are unavailable.

 12.        In those circumstances, it is clear that the Expert committee for the name sake issued the opinion under Ex.C.1, without calling for case record from the opposite parties’ hospital and referred only at K.G.Hospital reported  thereby the District Forum in its order observed in para 19 as follows:

         “The doctors of the expert committee failed to consider the aspects discussed above in paragraphs 17 and 18 above, on the basis of the Supreme Court observations and guidelines. The expert Committee’s report is mainly based on the surgery of resection and anastomosis and reanastomosis. The complainant has not alleged medical negligence in resection and anastomosis performed by Dr. Stella Kesari.  Complainant has alleged medical negligence against the opposite parties in dissecting the severe adhesion to the mesentery over the anterior wall of the uterus before Hysterectomy to the complainant and their mistake in damaging 1 feet length of small intestine.

13.       The learned counsel for the appellant relied upon the ruling reported in

 I (2009) CPJ 263 (NC )

II (2009) CPJ 48 Supreme Court

    The non-providing Expert evidence of the complainant in III (2009) CPJ 189 and 2008 (1) CPR 380 NC for non-production of medical literature in support of the complaint while considering these contention in view of the facts and circumstances of the case and on the basis of oral evidence recorded by the District Forum and the 1^st opposite party had also filed Ex.A.1 and Ex.A.2. We are of the view that because of non-production of medical litererature complainant’s case cannot be considered as not proved and thereby in view of the foregoing discussions, the District Forum had considered all the relevant materials and careful analysis of both side materials and expert’s report under Ex.C.1, came to proper conclusion by allowing the complaint and also awarding a sum of Rs. 52,000/- towards subsequent medical expenses with cost of Rs.3000/- apart from a sum of Rs.10,000/- as compensation for medical negligence which are all justifiable, while considering the facts and circumstances of the case and thereby we find no merits in the appeal which is to be dismissed as devoid of merits.

 

            In the result, this appeal is dismissed. Confirming the order of the District Forum, Nilgiris in C.C. 42/2007 dated 21.10.2010.

             No order as to cost in the appeal.

             The direction of the District Forum shall be complied within six weeks from the date of this order.

 

 

P.BAKIYAVATHI                                           A.K.ANNAMALAI

 MEMBER                                          PRESIDING JUDICIAL MEMBER