Tamil Nadu

South Chennai

36/2008

Jayanthi - Complainant(s)

Versus

Kasturba Government Hospital and 2 others - Opp.Party(s)

Poonam Raja

01 Jun 2018

ORDER

                                                                         Date of Filing  : 24.01.2008

                                                                           Date of Order : 01.06.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                                : MEMBER-I

 

C.C. No.36 /2008

DATED THIS FRIDAY THE 01^ST DAY OF JUNE 2018

                                 

Mrs. Jayanthi,

W/o. Mr. A. John Wesley,

No.2/346, Indira Nagar,

Near ACA Church,

Tirisoolam,

Chennai – 600 043.                                             .. Complainant.                                                    

 

                                                                                   ..Versus..

 

1. THE DIRECTOR OF SOCIAL OBSTETRICS,

INSTITUTES OF SOCIAL OBSTETRICS

AND GOVERNMENT KASTURBA GANDHI

HOSPITAL FOR WOMEN AND CHILDREN,

CHENNAI – 600 005.

 

2. SRM Scans,

Rep. by its Medical Superintendent

Dr. S.T. Ramanathan,

No.68, Thambiah Road,

West Mambalam,

Chennai – 600 033.

 

3.  Medi Scan Systems,

Rep. by its Director Dr. Suresh,

New No.203, Old No.113-B,

Avvai Shanmugam Road,

Royapettah,

Chennai – 600 014.                                             ..  Opposite parties.

          

Counsel for complainant          :  M/s. A. Senthil Kumar & others

Counsel for 1^st opposite party :  M/s. Ponram Rajaa

Counsel for 2^nd opposite party :  M/s. V. Venkatesan & others

Counsel for 3^rd opposite party :  M/s. K. Ganesan

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying to pay a sum of Rs.5,00,000/- towards medical expenses incurred and for future medical expenses, to pay a sum of Rs.10,00,000/- towards compensation for deficiency in service,  mental agony and loss suffered by the complainant and to pay the cost of the complaint.

1.    The averments of the complaint in brief are as follows:

The complainant submits that she got married on 10.12.2005 and had her last menstrual period on 28.12.2005 and thereafter, no menstrual period for 45 days and she developed abdominal pain and vomiting.   So, she consulted a Doctor with the 2^nd opposite party and on her advice she undergone Urine Pregnancy Test and USG with the 2^nd opposite party on 13.02.2006.  The following are the results:

1. Urine Pregnancy Test  - Positive
2. USG Report               - ECTOPIC PREGNANCY IN THE LEFT       

OVARY (LEFT OVARIAN PREGNANCY).

Hence the complainant got admitted in the 1^st opposite party’s Hospital as inpatient on 14.02.2006 and undergone certain tests.  The USG report given by the 1^st opposite party is as follows “A HYPO-ECHOIC MASS IN RIGHT OVARY”.  The complainant further submits that the report given by the 2^nd opposite party was different from that of the 1^st opposite party i.e. the 1^st opposite party diagnosed some problem in the right ovary whereas the 2^nd opposite party diagnosed problems in the left ovary of the complainant.   Therefore, the complainant visited the Joseph Nursing Home wherein on 02.03.2006, the operation of ‘Laparoscopic Evaluation of Tubal Abortion Anaesthesia:GA’ was done. Thereafter, on 15.02.2006, the right ovary of the complainant was removed by laparoscopy operation.  Even after such operation, the complainant had persistent pain.  The 1^st opposite party without any proper diagnosis and treatment discharged the complainant on 23.02.2006 in a hasty manner without considering the problems of the   complainant.    

2.     Further the complainant pleaded and contended that she was again advised for a scan and accordingly a pelvis scan was conducted with the 3^rd opposite party and the report reads as follows:

 “GESTATIONAL SAC WITH FETAL POLE SEEN IN LEFT ADNEXA CLOSE TO LEFT OVARY – SUGGESTIVE OF SECONDARY ABDOMINAL PREGNANCY GONE INTO MISSED ABORTION – FLUID WITH BANDS SEEN IN PELVIS – NORMAL APPEARING UTERUS”.

The complainant further submits that the reports of both the 2 & 3^rd opposite parties referred to that only the LEFT OVARY had the problem.  But the 1^st opposite party report had differed from that of given by the 2 & 3^rd opposite parties. 

3.     Further the complainant states that the 2^nd opposite party has confirmed its report to be correct and had also raised certain doubts as to the omission of certain tests like BHCG having not being done as it was a routine test and also the 2^nd opposite party has raised a question as to why a routine and non invasive USG was not carried out by the 1^st opposite party and in fact the same doubts were raised by the complainant in her advocate’s notice dated:07.05.2007.   The 1^st opposite party had miserably failed in not conducting certain necessary routine tests and had also wrongly diagnosed that the problem was with the RIGHT OVARY and to the worst of the case they had removed the RIGHT OVARY of the complainant by surgery.   On the other hand, the 1^st opposite party had in their reply dated:18.07.2007, had stated that they had a scan report from their Hospital which was contrary to that given by the 2^nd opposite party and also the 1^st opposite party disputed the impression given by the 2^nd opposite party in their report.  The act of 1^st opposite party caused mental agony to the complainant.  Hence the complainant issued legal notice dated:07.05.2007 to the 1^st opposite party and the 1^st opposite party denied their liability in his reply notice dated:18.07.2007.   Thereafter the complainant issued another legal notice dated:11.12.2007 to the 2 & 3^rd opposite parties seeking explanation about their scan reports.   The 2^nd opposite party in his reply confirmed that their report was correct and also raised certain doubts about the procedure adopted by the 1^st opposite party.  Thereafter, the complaint is filed.

4.     The brief averments in the written version filed by the  1^st opposite party is as follows:

The 1^st opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.  The 1^st opposite party states that the Ultra Sonogram at Institute of Social Obstetrics and Govt. Kasturba Gandhi Hospital for Women and Children Chennai – 5 has revealed right adnexal mass.  Further the 1^st opposite party states that, as an abundant precaution a diagnostic laparoscopy was done which also confirmed the Ultra Sonogram findings of right adnexal mass.  Hence laparotomy was proceeded with which confirmed right hemorrhagic cyst of 6 x 5 cm.  Hence the operating Surgeon proceeded with right ovariotomy after obtaining due consent.  Since the left ovary and both tubes were found normal they were left alone.  The 1^st opposite party further states that the complainant was discharged on 23.02.2006 following usual hospital practice.  The only confirmation of the orvarian pregnancy is by rule excision of ovarian mass and subjecting it for it histo-pathological examination, left ovary was found to be normal hence right ovariotomy of the ovarian hemoorhagic mass was done.  The 1^st opposite party further states that the opposite parties’ post operative notes indicate that the complainant maintained a good health condition and also she did not complain of any difficulty and the complainant was discharged as a routine on the 8^th post operative day.  Since the complainant did not come for follow up, the Histo Pathological Examination report was not available with the complainant but the same is available in the hospital records.  Moreover, the next intervention at Joseph Nursing Home was also of diagnostic nature without any intervention.   Hence there is no neglect or dereliction of duty on the part of the 1^st opposite party.  It is submitted that the Mediscan ultra sound report dated:27.02.2006 reporting as Right ovary not imaged is true as the complainant had undergone Right ovariotomy due to the hemorrhagic mass.  The other impression of a gestational sac in Left adnexa suggestive of secondary abdominal pregnancy is disputed by the 1^st opposite party because a good diagnostic laparoscopy followed by laparotomy had not revealed such findings and is confirmative.  Hence there is no deficiency or negligence in service on the part of the 1^st opposite party.  Therefore, this complaint has to be dismissed.

5.     The brief averments in the written version filed by the  2^nd  opposite party is as follows:

The 2^nd opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.  The 2^nd opposite party states that on 13.02.2006, the complainant came with the complaints of abdominal pain and vomiting and hence the Doctors advised the patient to undergo Urine Pregnancy test and USG Test to ascertain the cause for pain and vomiting.  In the USG report it is diagnosed that “ECTOPIC PREGNANCY IN THE LEFT OVARY (LEFT OVARIAN PREGNANCY) suggested Tran’s vaginal scan for confirmation – to correlate with B heg tire.   As far as pregnancy test is concerned it is diagnosed positive.    The 2^nd opposite party states that the complainant was not treated further by the 2^nd opposite party or the complainant took the suggested “Trans vaginal scan” for confirmation from the 2^nd opposite party.   The 2^nd opposite party’s role with the complainant’s is only to the extent of diagnosis on 13.02.2006.  Thereafter, the treatment given by the 1^st opposite party and the diagnosis done by the 3^rd opposite party is not within the knowledge or in control of the 2^nd opposite party.  As far as the 2^nd opposite party is concerned the diagnostic procedures are followed diligently, there is no room for carelessness or negligence.  The report given by the 2^nd opposite party is vouched by the 3^rd opposite party by way of their report dated:27.02.2006 and also has confirmed as:

“GESTATIONAL SAC WITH FETAL POLE SEEN IN LEFT ADNEXA CLOSE TO LEFT OVARY – SUGGESTIVE OF SECONDARY ABDOMINAL PREGNANCY GONE INTO MISSED ABORTION – FLUID WITH BANDS SEEN IN PELVIS – NORMAL APPEARING UTERUS”.

The complainant’s legal notice addressed to the 1^st opposite party dated:07.05.2007 paragraph No.5  “My client states that finally she had gone to Joseph’s Nursing Home headed by Dr. Kurian Joseph and admitted on 02.03.2006 operation of Laparoscopic Evaluation of Tubal Abortion was done.  Only after that my client is safe”.  The 2^nd opposite party states that they can hold responsibility for the scans and the tests done by their laboratory and their diagnostic center.   There is no cause of action against the 2^nd opposite party.  Hence the complaint is liable to be dismissed.

 

 

6.     The brief averments in the written version filed by the  3^rd opposite party is as follows:

The 3^rd opposite party specifically denies each and every allegations made in the complaint and puts the complainant to strict proof of the same.  The 3^rd opposite party states that the complainant was referred by the 2^nd opposite party to the 3^rd opposite party for Scan.  The scan was performed on 27.02.2006 which was much after the surgery performed on the complainant on 15.02.2006.  The 3^rd opposite party is not concerned with the reports given by the 1 & 2^nd opposite parties and in any event, the 3^rd opposite party performed scan on the complainant only after her right ovary was removed by surgery.  The 3^rd opposite party is in no way responsible or answerable to the physical condition and other consequential and related problems allegedly faced by the complainant since the 3^rd opposite party has only examined the complainant and given a report.  At the time of scan conducted by the 3^rd opposite party, the right ovary of the complainant had already been removed and therefore, the 3^rd opposite party cannot conclusively state as to whether there was any problem or not with the right ovary which was not available for scan.  However, the 3^rd opposite party at the risk of repetition stands by its diagnosis with regard to the left ovary.  The 3^rd opposite party is not in any way answerable to the complainant for her present physical and mental condition and the surgery was performed only by the 1^st opposite party with whom the 3^rd opposite party has no connection what so ever.   The report given by the 3^rd opposite party on 27.02.2006 after the surgery performed on 15.02.2006 is correct to the best of knowledge and expertice of the 3^rd opposite party and the 3^rd opposite party stands by it.  The 3^rd opposite party has not been even shown to be negligent and cannot be accused of any deficiency in service.  Hence the complaint is not maintainable.

7.   In order to prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A12 are marked.  In spite of sufficient time by way of repeated adjournments given, the 1^st opposite party has not come forward to file his proof affidavit to prove the contentions raised in the written version.  Hence evidence of the 1^st opposite party is closed.  Proof affidavit of the 2^nd opposite party filed and no documents filed and marked on the side of the 2^nd opposite party.  Proof affidavit of the 3^rd opposite party filed and no documents filed and marked on the side of the 3^rd opposite party.

 

 

8.     The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.5,00,000/- towards medical  expenses incurred and for future medical expenses as prayed for?
2. Whether the complainant is entitled to a sum of Rs.10,00,000/- towards compensation for mental agony with cost of prayed for?

9.     On point:

The complainant and the 2^nd & 3^rd opposite parties filed their respective written arguments.  Heard the 3^rd opposite party Counsel also.  Perused the records namely the complaint, written version, proof affidavits, documents etc.   The complainant pleaded and contended that she got married on 10.12.2005 and had her last menstrual period on 28.12.2005 and thereafter, no menstrual period for 45 days and she developed abdominal pain and vomiting.   So, she consulted a Doctor with the 2^nd opposite party and on her advice she undergone Urine Pregnancy Test and USG with the 2^nd opposite party as per Ex.A1 on 13.02.2006.  The following are the results:

3. Urine Pregnancy Test  - Positive
4. USG Report               - ECTOPIC PREGNANCY IN THE LEFT       

OVARY (LEFT OVARIAN PREGNANCY).

Hence the complainant got admitted in the 1^st opposite party’s Hospital as inpatient on 14.02.2006 and undergone certain tests.  The report given by the 1^st opposite party as per Ex.A7 case sheet without enclosing the test report reads “right ovary enlarged c/s: Encapsulated mass in the rt ovary” and on 15.02.2006, the right ovary of the complainant was removed by laparoscopy operation.  Even after such operation, the complainant had persistent pain.  Therefore, the complainant visited the Joseph Nursing Home wherein on 02.03.2006, the operation of ‘Laparoscopic Evaluation of Tubal Abortion Anaesthesia:GA’ was done and thereby, the complainant was saved from such pain and trauma.  In the Joseph Nursing Home as per Ex.A12, it is clearly mentioned that the

“Nature of Surgery:-

Laparoscopic Evaluation of Tubal Abortion           Indication: Left Ectopic

Aneaesthesia :GA

Findings: Uterus RV, fixed and blood clots found in the POD with omental adhesion.  Haemoperitoneum found.  Right tube normal and Right Ovary absent.  Left tube enlarged Fimbrial end distended & fixed to Left Ovary & POD with contents of Tubal abortion.

Procedure: Laparoscope introduced through a Primary Left paraumbilical port. Using 2 additional ports, Omental adhesions freed.  Left tube & Ovary dissected free.  There was bleeding from the Fimbrial end and the same controlled by coagulation & compression.  Dye test done.  Both Tubes showed free spill.  Haemostasis secured. Pelvic cavity washed.  Laparoscope withdrawn.  Skin-nosutures”.

proves the negligence in diagnosis, treatment and administration of surgery is utter wrong. 

10.   Further the complainant pleaded and contended that as per the details of reports of the opposite parties, which are as follows:

1^ST OPPOSITE PARTY

“A HYPO-ECHOIC MASS IN RIGHT OVARY”.

2^ND OPPOSITE PARTY

1. Urine Pregnancy Test  - Positive
2. USG Report               - ECOTOPIC PREGNACY IN THE LEFT

OVARY (LEFT OVARIAN PREGNANCY).

3^RD OPPOSITE PARTY

“GESTATIONAL SAC WITH FETAL POLE SEEN IN LEFT ADNEXA CLOSE TO LEFT OVARY – SUGGESTIVE OF SECONDARY ABDOMINAL PREGNANCY GONE INTO MISSED ABORTION – FLUID WITH BANDS SEEN IN PELVIS – NORMAL APPEARING UTERUS”.

proves  the deliberate act of the 1^st opposite party resulted great mental agony and was critical to the extent of childbirth. The complainant cited the decisions reported in

2007 (1) CPJ 167, National Consumer Disputes Redressal Commission

between

Gowri Shankarpadhi

- Versus –

State of Orissa

and

CDJ 2007 (Cons.) Case No.043

National Consumer Disputes Redressal Commission

between

Smt. Saroj Chandhoke & others

– Versus –

Sir Ganga Ram Hospital & Another

 

11.   The complainant further pleaded and contended that the complainant is claiming a sum of Rs.5,00,000/- towards compensation for medical expenses already incurred and for future medical expenses.   But the complainant produced medical bills Ex.A8 to Ex.A10 for a sum of Rs.14,560/-. The complainant is claiming Rs.10,00,000/- towards compensation for deficiency in service.   But the complainant has not proved such huge claim of compensation in a manner known to law.

12.   The contention of the 1^st opposite party is that the Ultra Sonogram at Institute of Social Obstetrics and Govt. Kasturba Gandhi Hospital for Women and Children Chennai - 5 has revealed right adnexal mass.    But no such report filed before this Forum by the 1^st opposite party.  Further the 1^st opposite party contended that, as an abundant precaution a diagnostic laparoscopy was done which also confirmed the Ultra Sonogram findings of right adnexal mass.  The said report has not been produced.   On a careful perusal of Ex.A7, case sheet it is very clear that the complainant was admitted as inpatient on 14.02.2006 and discharged on 23.02.2006.  It is seen also in Ex.A7 as follows:

“On 15.02.2006, Diagnostic Laparoscopy followed by Laparotomy ®  Ovariotory”. 

The case  history written by the Doctor shows as follows:

“® formix fullness + 3 x 2 cm cystic man palpable”. 

But no test report enclosed.   

13.   Further on a perusal of Ex.A7, it reads as follows:

“Diag Lap proceeded c

Laparoscopy

Bladder cathe fevis 2d

Diag Lap done & SA

Per op

1. Ut, L tube & ovary N
2. ® ovary enlarged 6 x 4 cm

Hemorshagic ® tube normal

3. No free fluid

So proceeded c Laparoscopy

Per op

  Ut L tube / ovary normal”

In the case sheet, the operation report also reads that right ovary removed.  But none of the report filed before this Forum to show that  there is neither cyst nor enlargement hemorrhagic was found in the right ovary.   On the other hand, as per Ex.A1, Ex.A11, Ex.A12 it shows as follows:

 “ECTOPIC PREGNANCY IN THE LEFT OVARY

(LEFT OVARIAN PREGNANCY)

Suggested Transvaginal scan for confirmation

- To correlate with β heg titre”.

“Marital History    : Since 2 years

Obst. History         : GI – Left Ectopic Pregnancy in

                                 Fallopian tube – 1 year before

Past History           : Entire ovary removed on rt. side

                                    After 18 days, / tubal Abertuis.

Gen Examination  : Left ovary – present”

“Nature of Surgery:-

Laparoscopic Evaluation of Tubal Abortion           Indication: Left Ectopic

Aneaesthesia :GA

Findings: Uterus RV, fixed and blood clots found in the POD with omental adhesion.  Haemoperitoneum found.  Right tube normal and Right Ovary absent.  Left tube enlarged Fimbrial end distended & fixed to Left Ovary & POD with contents of Tubal abortion.

Procedure: Laparoscope introduced through a Primary Left paraumbilical port. Using 2 additional ports, Omental adhesions freed.  Left tube & Ovary dissected free.  There was bleeding from the Fimbrial end and the same controlled by coagulation & compression.  Dye test done.  Both Tubes showed free spill.  Haemostasis secured. Pelvic cavity washed.  Laparoscope withdrawn.  Skin-nosutures”.

proves that there is no deformity in the right ovary except left ovary proves that the 1^st opposite party with utter disregard of the report  wrongly made diagnosis and negligently conducted ovariotomy of right ovary by Laparoscopy Operation. 

14.   The contention of the 2^nd & 3^rd opposite parties is that the complainant at the first instance on 13.02.2006, came to the 2^nd opposite party with the complainant of abdominal pain and vomiting the Doctors  advised to undergo the Urine Pregnancy Test and USG test and it was diagnosed as follows:

“ECTOPIC PREGNANCY IN THE LEFT OVARY

(LEFT OVARIAN PREGNANCY)

Suggested Transvaginal scan for confirmation

- To correlate with β heg titre”

and suggested Transvaginal scan for confirmation to correlate with β heg titre.  Thereafter, the 2^nd opposite party has not administered any treatment and thereby, there was no negligence on the part of the 2^nd opposite party.  

15.   The contention of the 3^rd opposite party is that, on 27.02.2006, the 3^rd opposite party performed scan to the complainant after performance of surgery by the complainant on 15.02.2006, as per Ex.A2.  In the Pelvis Scan Report it reads as follows:

“GESTATIONAL SAC WITH FETAL POLE SEEN IN LEFT ADNEXA CLOSE TO LEFT OVARY- SUGGESTIVE OF SECONDARY ABDOMINAL PREGNANCY GONE INTO MISSED ABORTION NORMAL APPEARING UTERUS”.

 The 3^rd opposite party is not connected with the reports given by 1^st  & 2^nd opposite parties.  The 3^rd opposite party performed the scan on the complainant only after her right ovary was removed by surgery.  The 3^rd opposite party is not at all responsible to the physical condition and other consequential problems faced by the complainant and is not liable to pay any compensation. Considering the facts and circumstances of the case, this Forum is of the considered view that  a sum of Rs.14,560/- is awarded towards compensation for medical expenses and a sum of Rs.50,000/- is awarded towards future medical expenses with a compensation of Rs.50,000/- awarded towards mental agony and deficiency in service and the amount shall be payable by the 1^st opposite party with cost of Rs.5,000/- to the complainant.

  In the result, this complaint is allowed in part.  The 1^st opposite party is directed to pay a sum of Rs.14,560/- (Rupees fourteen thousand five hundred and sixty only) being medical expenses incurred by the complainant and to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards future medical expenses and to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for mental agony and deficiency in service with cost of Rs.5,000/- (Rupees five thousand only) to the complainant.  The complaint against the 2^nd  & 3^rd opposite parties is hereby dismissed.

The above amounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 01^st day of June 2018. 

 

MEMBER –I                                                                      PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

		Copy of USG Report of the 2nd opposite party
		Copy of Pelvis scan report of the 3rd opposite party
		Copy of legal notice to the 1st opposite party
		Copy of reply notice by the 1st opposite party
		Copy of legal notice to the 2 & 3rd opposite parties
		Copy of reply notice by the 2nd opposite party
		Copy Case Sheet of the 1st opposite party
		Copy of cash receipt
		Copy of cash receipt
		Copy of medical bills
		Copy of HSG Report
		Copy of discharge summary

 

1^ST OPPOSITE  PARTY SIDE DOCUMENTS:  EVIDENCE CLOSED.

2^ND OPPOSITE  PARTY SIDE DOCUMENTS:  NIL

3^RD OPPOSITE  PARTY SIDE DOCUMENTS:  NIL

 

 

MEMBER –I                                                                      PRESIDENT