Punjab

StateCommission

A/10/1968

Dr. Mandeep Kaur - Complainant(s)

Versus

Kalawati - Opp.Party(s)

Vaibhav Narang

06 Jan 2015

ORDER

 

 PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 1968 of 2010

                                                           

                                                                                                                                                Date of institution:   16.11.2010

                                                                                                                                                  Date of decision    :   06.01.2015

 

1. Dr. Mandeep Kaur Grewal Hospital, Gill Road, Ludhiana.
2. Grewal Hospital through its proprietor Gill Road, Ludhiana.
3. United India Insurance Company Ltd., through its Sh. Divisional Manager, 54, Janpath, Connaught Place, New Delhi-110001.

…..Appellants/Opposite parties

                                                Versus

 

1. Kalawati W/o Sh. Bhagwan Singh R/o House No. 800, Gali No. 3, Laxman Nagar, Daba-Lohara Road, Near Gumber Medical Store, Ludhiana. 

……..Respondent No. 1/complainant

2. National Insurance Company Ltd., through its Branch Manager, Link Road, near Atam Park, Ludhiana.

…..Respondent No. 2/Opposite Party No. 2

 

First Appeal against the order dated 24.08.2010 passed by the District Consumer Disputes Redressal Forum, Ludhiana.

Before:-

 

          Sh. Baldev Singh Sekhon, Presiding Member

          Sh. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellants                   Sh. Vaibhav Narang, Advocate

          For respondent No. 1    Sh. Tarun Jhatta, Advocate

          For respondent No. 2    Sh. Rahul Sharma, Advocate for

                                                Sh. Ashwani Talwar, Advocate

 

BALDEV SINGH SEKHON, PRESIDING MEMBER

 

                   This appeal has been filed by the appellants/opposite parties (hereinafter referred as ‘OPs’) under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) against the order dated 24.08.2010 passed by District Consumer Disputes Redressal Forum, Ludhiana (in short the 'District Forum') in CC No 48 of 2008 vide which the complaint filed by the respondent/complainant (here in after called the “complainant”) was allowed and OPs No. 1 & 2 were directed jointly and severally to pay to the complainant a compensation of Rs. 2 lacs for medical negligence with interest thereon @ 9% p.a. from the date of institution of the complaint i.e. 24.01.2008 till the date of actual payment.  They were further burdened with the litigation costs to the tune of Rs. 5000/-.  OP No. 3 was directed to indemnify to OP No. 1 for the compensation because it was OP No. 1 who conducted the operation and was responsible for after operation care of the complainant.

2.                Briefly stated, the facts of the case are that on 25.05.2007 at 10.00 a.m., the complainant was admitted in OP No. 2 hospital and was diagnosed of 3^rd degree U-V (Uterovaginal) prolapsed by OP No.1.  She was posted for “vaginal hysterectomy” with pelvic floor repair after Pre Anaesthetic Check.  She underwent vaginal hysterectomy with pelvic floor repair on the said date at 3.00 p.m and was discharged from OP No. 2 hospital on 01.06.2007.  It was pleaded that she paid all the charges due to OP No. 1 & 2 for the aforesaid services provided by them.  But after the operation, her condition deteriorated and she was still suffering and some new problems developed.  On 11.06.2007, on the advice of OP No. 1 & 2, she got conducted x-ray examination from Dr. Rakesh Ultrasound and X-ray centre and Preet Diagnostic Laboratory, Ludhiana.  OP No. 1 then referred her to Civil Hospital, Ludhiana where she was admitted vide OPD/CR No. 2996/07 dated 11.06.2007.  The, Civil Hospital, Ludhiana further referred her to tertiary Institute i.e. CMC Ludhiana for further management on 12.06.2007.  In C.M.C. Ludhiana, complainant was treated for Exploratory Laparotomy on 12.06.2007 during which it was found that wound of the operation conducted by OP No. 1 & 2, was got infected.  She remained admitted in CMC upto 18.07.2007.  It was further pleaded that after discharge from OP No. 2 hospital on 01.06.2007, she reported her condition to OP No. 1 & 2 several times but they did not bother.  Alleging deficiency in service on the part of OP No. 1 & 2 during her after operation care from 01.06.2007 till 11.06.2007, she filed complaint before District Forum seeking directions to OP NO. 1 & 2 to pay her damages connected with her treatment to the tune of Rs. 3 lac along with interest besides Rs. 1 lac as compensation for harassment and Rs. 5000/- as litigation expenses.

3.                 OP No. 3 & 4 were impleaded as insurer of OPs No. 1 & 2 respectively.  However on the representation of OP No. 4 that it had not insured OP No. 1, its name was deleted by the District Forum vide its order dated 13.04.2010. 

4.                In their joint written statement, OP No. 1 & 2 admitted that the complainant was admitted in OP.2 hospital on 25.05.2007 at 10.00 a.m. with diagnosis of 3^rd degree U-V (Uterovaginal) Prolapsed and that she underwent Vaginal Hysterectomy with pelvic floor repair on the same day.  It was pleaded that post operatively, she was managed with IV fluids, antibiotics, Ciprofloxacin, Amikacin, Metrogyl, Analgesics.  The patient started taking orally on post operative day one.  The stay of the complainant was uneventful in the hospital.  There was no evidence of infection during her stay in the hospital.  She was discharged on 01.06.2007 at around 1.00 p.m in satisfactory condition. At that time she was afebrile and on normal diet.  She was advised oral antibiotics and was called for follow up after one week or earlier in case there was any problem.  But the complainant did not turn up for follow up as per the advice of OP No. 1.  She came in Gynaecology OPD on 11.06.2007 i.e.  after ten days of  her discharge with the complaints of “intermittent fever for seven days, abdominal pain and distension for one day”. Based on the history, examinations and investigations, she was diagnosed of “Peritonitis with Septicaemia”. Physician’s consultation was also taken. Due to anticipated need of ventilator support and urgent blood transfusion, the complainant was referred to tertiary care centre. As per choice of the complainant, she was referred to Civil Hospital Ludhiana with proper referral note. The condition of the complainant was discussed with her attendants and decision of referring to tertiary care centre was taken. It was further pleaded that OP No.1 treated and referred the complainant diligently and prudently with due care and caution and that the condition of the complainant deteriorated on account of her own negligence in not approaching them from 01.06.2007 onwards till 11.06.2007 for follow up treatment. There was absolutely no evidence to prove negligence on their part. The complaint is false and without any cause of action and the same amounted to abuse of process of law. The diagnosis of the patient and her further treatment and the complications subsequent to that are always a matter of fact and not of speculations. If the benefits of the treatment are to go to the patient, its complications, untoward effects and unwarranted results/complaints will also go to the patient.  These untoward results/complications cannot be said to be negligence on the part of treating doctor. OP No.1, being the treating doctor, had tried her best and used her highest degree of skill care, knowledge, infrastructure, efforts and precaution and also tried to avoid all complications. But treating doctor cannot avoid any inherent complication in 100% cases which are basic ingredients of disease pathology itself or the treatment procedure about which the complainant was well informed. Only precautionary steps can be taken by any prudent qualified doctor who is engaged in the treatment of the patient. Until and unless the complainant is able to prove that the treating doctor had deviated from normal/prescribed line of treatment applicable to the particular case/disease conditions, any complications cannot be labelled as negligence. No such complaint can be tried by the District Forum.

5.       Parties led their evidence by way of affidavits and documents before the District Forum, which after going through the same allowed the complaint in aforesaid terms.     

6.       Aggrieved by this order, OPs No. 1,2 & 3 have come up in appeal on the ground that the District Forum in para No. 8 of the impugned order has categorically held that the medical record of CMC Ludhiana and Civil Hospital Ludhiana does not, at all, suggest any negligence in conducting of operation by appellant No. 1 & 2. Thus the Learned District Forum has correctly held that the OP No. 1 & 2 were not negligent at any stage of surgery/operation conducted on 25.05.2007. However, Learned District Forum wrongly held that the appellant was liable for negligence simply because the treatment record of the patient was not filed before it by the counsel of the appellants. It was submitted that the copy of the treatment record was available with the counsel of the appellants, but, the counsel did not/could not file the same before the District Forum .The appellants came to know about this fact only on receipt of copy of the impugned order. Therefore, the appellants should not be penalised for the laxity on the part of their counsel. The said treatment record was filed before this Commission along with an application seeking permission for placing on record the additional documents.

7.       It was further submitted that District Forum wrongly held that in post operation care and attention of the complainant, appellant No. 1 & 2 are clearly negligent. It has wrongly quoted from the treatment record that when the complainant was referred to civil Hospital Ludhiana by appellant No.1 on 11.06.2007, she was having high degree fever to the extent of 104˚F and that this fact is born out from the hospital record of CMC Hospital and Civil Hospital Ludhiana. It is evident from the records of the appellant hospital, Civil Hospital as well as CMC that the patient had temperature of 100˚F on 11.06.2007 and not 104 degree as observed by the District Forum. It has been wrongly assumed by District Forum that the treatment record of the hospital further indicates that the patient had high grade fever for the last seven days whereas the record of the Civil Hospital as well as CMC Ludhiana indicates temperature was actually 100˚F. The presumption by the Learned District Forum that the appellants are negligent because of non-filing of the treatment record is against the basic principle of natural justice.

8.                It was further submitted that Op No.1 had advised the complainant to come for follow-up after one week of the surgery (she was orally told to come early in case of a problem), but she did not visit Op No.1 until 11.06.2007 i.e. after 18 days Post Vaginal Hysterectomy,  more so, when she had fever for the last seven days with abdominal pain and distension for one day. Learned District Forum has further wrongly assumed that the infection of wounds of the complainant occurred for want of proper care and follow-up by OP No.1 & 2 and that as per the discharge summary of CMC, there was wound infection therefore , Ops  No.1 & 2 are clearly guilty of medical negligence. It is a fact that the infection of the wound was post Vaginal Hysterectomy and the reason behind Peritonitis was that the complainant did not come for follow-up to the appellants as per advice given to her and she reported  after ten days of  discharge from the hospital. Had the patient come for follow up when she was suffering from fever, she would have been treated medically and probably surgery would have not been necessary. The appellants cannot be held liable for negligence on the part of the patient because the treating doctor cannot be expected to pay home visit without any information/intimation by the patient. Acceptance of the appeal and setting aside the impugned order was prayed.

8.       Learned Counsel for the respondent/complainant submitted that there was no merit in the appeal and the same be dismissed.

9.       We have thoroughly gone through the pleadings of the parties, carefully perused the evidence on record and heard the Learned Counsel for the parties at length.

10.     Admittedly the complainant approached Op No.1 & 2 with the diagnosis of third degree “Uterovaginal prolapsed”. She was operated upon for Vaginal Hysterectomy with pelvic floor repair on 25.05.2007 and was discharged from the OP hospital on 01.06.2007. The Learned District Forum has clearly returned the findings that there was no negligence in conducting the operation for Vaginal Hysterectomy upon the complainant on 25.05.2007. However, it has held that Op No.1 & 2 were negligent in providing post operative care and attention to the complainant. District Forum has further observed that the complainant was referred to Civil Hospital by OP No.1 on 11.06.2007 when she was having high grade fever to the extent of 104˚F and that it was evident from the hospital record of CMC (Ex.C-20) and Civil Hospital, Ludhiana (Ex.C-21) that the complainant had fever for the last ten days i.e. since 01.06.2007 itself when she was discharged from OP hospital and that she was asked to come for follow-up after a week. It was also observed by District Forum that Op No.1 & 2 had deliberately withheld the medical record of the patient for the reason best known to them and that in the absence of same, it appears that lack of proper “after operation advice, care and attention” to the complainant caused infection of her wound on 11.06.2007 and that on 12.06.2007, she was found to be suffering from peritonitis-post vaginal hysterectomy”.

10.     OP No.1 & 2 have placed on record the complete medical record of the complainant/patient with the present appeal and has also filed M.A seeking permission for placing on record the same. Perusal of the said medical record ( Annexure P-8 to the appeal) shows that after the operation was conducted on 25.05.2007, the temperature of the complainant remained around 98˚F till the discharge on 01.06.2007. Medical Notes dated 01.06.2007 show that the patient was “on normal diet, her B.P was 110/70, PA soft, vaginal bleeding M-1, sutures healing well”. Thereafter the patient was discharged on 01.06.2007. Apparently the complainant was discharged from the hospital of OP No.2 on 01.06.2007 in satisfactory condition. Thus, it cannot be assumed that she was having high grade fever or any infection at the time of discharge or immediately thereafter.  It has been deposed by OP No. 1 in her affidavit (Ex. RW-1/1) that the complainant was advised to come up for follow up after a week (she was also told orally that in case of problem she should come early also) but there is no record to show that the she visited OP hospital prior to 11.06.2007 and that when she reported on 11.06.2007, as per treatment history dated 11.06.2007 recorded on page No. 109 of the appeal, she was having the fever of 100˚ F for 7 days, abdominal pain and distension for one day.  Even in the history report of Civil Hospital, the complainant was having fever for the last 7 to 10 days.  Thus it is noticed that the complainant developed fever a couple of days after her discharge from the hospital of OP No. 2.  She should have immediately contacted OP No. 1 for follow up but instead waiting for 10 days.  The OPs have further contended that the infection of wound was Post “Vaginal Hysterectomy” and main reason behind peritonitis was that the patient did not come for follow up to the appellants as per advice given to her and only reported to the appellant hospital 10 days after her discharge. Had the patient come for follow up immediately when she started having fever, she could have been treated medically and probably surgery would not have been necessary.  Thus, she herself failed to promptly report her problem to OP No. 1.  The OPs have further submitted that the diagnosis of the disease and its treatment and complications are always matter of fact and not of speculation and that the if the benefits of the treatment have to go to the patient, its complications and untoward results would also go to the patient and that the complications connected with the specific surgery/operation cannot be termed as medical negligence.  In support of these contentions, the OPs have relied upon the medical literature referred to as “Diagnosis and Management of Postoperative Infection” by Dr. Patrick Duff, MD, having ISSN :1756-2228), 2011 in which it has been stated as under:-

INTRODUCTION

“Infection of the operative site is the single most common complication associated with pelvic epidemiology, diagnosis, and management of the two most common postoperative infection pelvic cellulitis after hysterectomy. It also considers several potentially serious and even life operative site infection, namely wound infection, pelvic abscess, and septic pelvic vein thron concludes with an assessment of selected methods to prevent postoperative infection.”

OPERATIVE SITE INFECTION

Epidemiology

Operative Site infection (endometritis and pelvic cellulitis) is the most common complication hysterectomy.  In the absence of antibiotic prophylaxis, approximately 30-40% of had delivery develop endometritis; after a schedules caesarean, approximately 10-15% are infected women having a vaginal hysterectomy have pelvic cellulitis if they do not receive prophylact infection is lower after abdominal hysterectomy (approximately 15%)

11.              Appellants/OPs have further relied upon medical literature reported in the “British Medical Journal 14.05.1977” wherein at page 1239 under the heading “Pelvic Sepsis after hysterectomy”, it is mentioned as under:-

                   Pelvic Sepsis after hysterectomy

Hysterectomy is sometimes associated with postoperative pelvic sepsis occasionally severe enough to threaten life, Lesser degrees of infection are commonly reported in terms of “febrile morbidity,” variously defined but usually taken as a temperature raised above 100˚ F(37.8˚ C) on two consecutive days (excluding the first postoperative 24 hours) or raised or over 24 hours.

          In general, the reported incidence of febrile morbidity after Vaginal Hysterectomy has been higher (ranging from 13% to 77%) than after abdominal Hysterectomy (when morbidity has ranged from 3% to 41% in the absence of antibiotics) in order to reach the proper conclusion.

12.              Further in medical literature titled as “An Overview of Hysterectomy : Complications by Angie L. Goeser, PharmD, Matthew J. Hasiak, PharmD, Jared L. Hochstettler, PharmD Candidate, it is mentioned as under:-

Infection is a common postoperative complication associated with hysterectomy.  Four percent to 10% of patients undergoing vaginal hysterectomy and 6% to 25% of those having abdominal hysterectomy develop an infection postsurgery.  In all, regardless of the careful precautions taken, approximately one-third of patients develop postoperative febrile infection.  Because of this, the use of preoperative and postoperative interventions, such as prophylactic treatment with broad-spectrum antibiotics, can contribute greatly to the reduction of infections occurring with hysterectomies.

13.     Complainant has not disputed the above referred medical literature from which it is evident that “peritonitis or the wound infection” from which the complainant was suffering was, in fact a well known complication post vaginal hysterectomy and same cannot be termed as medical negligence. District Forum did not, at any stage, impressed upon OP No. 1 & 2 to place on record the complete medical record of the patient and has wrongly assumed the complication connected with the operation as negligence on the part of the treating doctor by assuming the same to having been developed due to lack of post operative care. Appellants cannot be penalised for the laxity on the part of their counsel in not filing the Medical Record of patient before District Forum which was otherwise available.  There is no other evidence or expert opinion on record which would suggest that there was any lapse on the part of the OPs during the operation or during post operative care.

14.              In view of above discussion and findings, the appeal of appellants/OP No. 1& 2 is allowed and the impugned order of the District Forum is set-aside.  Consequently, the complaint filed by the complainant is dismissed.  No order as to costs.

15.              The appellants have deposited an amount of Rs.25000/- with this Commission at the time of filing of the appeal. The amount of Rs. 25,000/- alongwith interest accrued thereon, if any, be remitted by the registry to the appellants by way of a crossed cheque/demand draft after the expiry of 45 days of dispatch of order.

16.               The arguments in this appeal were heard on 17.12.2014 and the order was reserved. Now the order be communicated to the parties as per rules.

 

                                                                                                                                                               (BALDEV SINGH SEKHON)

                                                                                                                                                               PRESIDING MEMBER

 

 

 

                                                                                   (HARCHARAN SINGH GURAM)

                                                                  MEMBER

 

                             January 6th, 2015

                               Rupinder