PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of January 2012
Filed on : 11/06/2009
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member.
C.C. No.310/2009
Between
Leela, : Complainant
D/o. K.A. Devassia, (By Adv. Saji Isaac K.J.,
Kottanadan house, 311 H.B. Flats, Panampilly
Asokapuram P.O., Nagar, Kochi-36)
Near Mahila Samagam,
Aluva-1.
And
1. Lakshmi Hospital, : Opposite parties
Mezhukkattil Buildings, (By Adv. Harish R. Menon,
Sub Jail road, Off. 42/1934, Opp. Link
Aluva-683 101, Manor Flats,Old Railway
rep. by its Medical Station Cross road,
Superintendent/Administrator. Ernakulam, Kochi-682 018)
2. Dr. Chandra Ram Mohan,
Obstertrician/Gynaeclogist,
Lakshmi Hospital,
Mezhukkattil Buildings,
Sub Jail road, Aluva-683 101.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant is a nursing assistant by profession. The 2nd opposite party is a Gynaecologist working in the 1st opposite party hospital. On 09-06-2007 the complainant consulted the 2nd opposite party with complaints of pain lower abdomen more on the right side. The 2nd opposite party advised the complainant to consult a general surgeon. As per the direction of the surgeon the complainant underwent scanning. As per the scanning report the uterus and left ovary was normal, but there was a 7.5x5.5 c.m. right ovarian cyst with internal echoes without separation or solid components. The complainant again approached the 2nd opposite party. The 2nd opposite party informed the complainant that her right ovary has to be removed as there was an ovarian cyst. On 22-04-2009 the 2nd opposite party conducted laparoscopic surgery for removal of the right ovary under general anaesthesia. After the surgery the 2nd opposite party intimated the bystanders that the right ovary was removed and sent for biopsy. Since the pain persisted the complainant obtained scanning report as per the direction of another doctor. On scanning it was found that the left ovary was absent and the right ovary in which the complainant was having the cyst was not removed and there was a 2.5 cm haemorrhagic cyst in the right ovary which had to be followed up. Though the cyst in the right ovary, was detected and the surgery was performed for removal of the right ovary, the 2nd opposite party removed the left ovary which was normal. The complainant is now advised another surgery for removal of the right ovary. Since the normal left ovary has been removed, removal of the right ovary would cause serious health problems. The opposite parties are liable for negligence, lack of care and deficiency in service. Thus the complainant is before us seeking direction against the opposite parties to pay a total compensation of Rs. 18 lakhs together with costs of the proceedings.
2. The opposite parties filed separate version contending as follows:.
There is no negligence or laches on the part of the opposite parties in treating the complainant. The complainant Mrs. Leela Alex came to the 2nd opposite party on 09/06/2007 for the first time with the complaints of abdominal pain during periods and more bleeding during periods since one year. The complainant stated that she is a married woman, but separated from husband for the past 6 years ad that she is aged 40 years. During her first visit, on examination she was found to have some nodularity behind the uterus which was painful. In medical field, such a finding with pain during periods is more likely a diagnosis of “Endometeriosis” which is a condition which can recur. She was given medical treatment then. An Ultrasound Scan at this period was a normal study. The complainant’s second visit was one month after the first visit with complaints of pain during periods. This time a minor surgical procedure of dilating the cervix, i.e. the mouth of uterus was done along with hormonal treatment. She was free of symptoms for 2 months. The complainant’s third visit was on 05-09-2007 with pain, but not heavy bleeding. She was given medical treatment. The fourth visit was on 12-04-2009 i.e. almost 2 years after the third visit, with same complaints of abdominal pain. When the complainant came to the 2nd opposite party during her fourth visit, she was having an ultrasound scan report which was done outside in the Doctors Diagnostic Centre. This report showed an ovarian cyst of about 7.5 x5.5 cm on the right ovary and a stone in the left kidney of about 5 mm. Since the scan report was from a reputed organization, a repeat scan was not done in the 1st opposite party hospital. The patient was posted for laparoscopic ovarian cystectomy on 22-04-2009 after doing the essential laboratory investigations. While doing operative laparoscopy, it was found that there was no evidence of any cyst on the right ovary; the right ovary and the tube were normal looking but there was a mass on the left side to which the left tube and ovary were all stuck together. The mass which appeared like an ovarian cyst was due to a oedematous inflamed and congested tube, which was adherent to congested left ovary and uterine surface. The whole mass containing tube and ovary was removed after releasing the adnescons from the neighbouring structure. Since the right ovary and tube were too normal, they were retained. After the surgery, as usually done, the finding was explained to the patient’s relatives, showing the specimen. Post surgically, patient had her post-operative check up, after one month on 19-05-2009, after her first period on 14-05-2009 after surgery. She had normal bleeding for 4 days. There is no basis for the averments/allegations as stated in the complaint.
3. The complainant and her witness were examined as PWs 1 and 2 respectively. Exts. A1 to A5 were marked on the side of the complainant. The 2nd opposite party was examined as DW1. Both sides filed argument notes. Heard the counsel for the parties.
4. The points that came up for consideration.
i. Whether the complainant is entitled to get a compensation of
Rs. 18/- lakhs from the opposite parties?
ii. Whether the opposite party is liable to pay the costs of the
proceedings to the complainant.
5. Point No. i. According to the complainant, the 2nd opposite party had removed her left ovary instead of the right ovary in which there was a cyst. The learned counsel appearing for the complainant submitted that the evidence adduced by the opposite parties does not show prima-facie anything to prove that there was a cyst in the left ovary of the complainant. The counsel relied on the decision rendered by the Hon’ble Appex Court in Savita Garg (Smt) V. Director National Heart Instititute Iv (2004) CPJ 40. By relying on the decision rendered by the Hon’ble Appex Court in Samira kohli V Dr. Prabha Manchandh 2008 (1) SCC 442. The counsel contended that the 2nd opposite party is guilty of negligence in removing the left ovary of the complainant without her consent.
6. The learned Counsel for the opposite parties submitted that the complainant failed to prove any negligence or deficiency in service on the part of the opposite parties in rendering treatment to the complainant. Further he contended that there is neither expert evidence nor medical literature to substantiate the contentions of the complainant.
7. Ext. A1 is the scan report dated 12-04-2009. The impression in Ext. A1 reads as follows:
* Normal uterus and left ovary but a 7.5 x 5.5 cm right ovarian
cyst with internal echoes without septations or solid
components noted-suggestive of right ovarian benign cyst
with partial torsion.
* Left renal calculus of 5 mm size at upper calyx without
hydronephrosis.
* Right kidney with its collecting system visualized normally.
* No hepatobiliary or pancreatic pathology detected.
The 2nd opposite party who was examined asDW1 deposed that since Ext. A1 was from a reputed organization a repeat scan was not done in the 1st opposite party hospital, not controverted.
8. Accordingly after the laboratory investigations the complainant was posted for Laparoscopic Ovarian systectomy on 22-04-2009. DW2 deposed that while performing the operative laparoscopy it was found that the right ovary was absolutely normal, but there was a mass on the left side to which the left tube and ovary were all stuck together and adhered towards uterus. She further stated that the whole mass containing tube and ovary was removed by piece meal after releasing the adhesions from the neighbouring structure.
9. The above procedure find a place in page No. 31 and 32 of Ext. X1 case sheet of the complainant maintained at the 1st opposite party hospital. At the instance of the complainant vide order in I.A.No.284/2009 dated 11-06-2009 this Forum directed to seize the case sheet and having been done so has produced in this Forum. The complainant does not have a case that the opposite parties forged or manipulated the case sheet of the complainant. DW1 has been consistent in Ext. A2 Histopathology report, Ext. A3 medical report, Ext. X1 case sheet, in her written version, in her proof affidavit in lieu of chief examination and during cross examination without demur to the contrary. Nothing is on record to disbelieve the case of the DW1.
10. PW2 is the Radiologist who prepared Ext. A4 ultra sound scan of the complainant dated 01-06-2009 she deposed that the cyst found in the right ovary of the complainant may be functional cyst and the same developed in menstrual period and vanished during the period. The cogent opinion of PW2 is taken into account cohernently and conclusively.
11. The decision rendered by the Hon’ble Supreme Court in Savita Garg (Smt) V. Director Natural Heart Institute (Supra) is not applicable in the instant case because the complainant failed to disprove her initial burden to prove the negligence on the part of the opposite parties. The decision in Samira Kohli V Prabha Manchanda (Supra) as well is not applicable in the case at hand. Since DW1 identified the problem of the cystic mass while performing the surgery and there was no scope for obtaining consent from the complainant at that time especially she was under sedation.
12. In Kishori Lal V ESI Corporation II (2007) CPJ 25 (SC) the Hon’ble Apex Court held that, “cause of action for negligence arises only when damage occurs and thus the claimant has to satisfy the court on the evidence that there ingredients of negligence namely (a) existence of duty to take care (b) failure to attain that standard of care and (c) damage suffered on account of breach of duty are present for the defendant to be held liable for negligence.”
13. The complainant in this case has miserably failed to establish the 2nd and 3rd ingredients as stated by the Hon’ble Supreme Court. In view of the above we find no reason to allow this complaint. Exigencies of consequences having been met squarely due to derogation of unwanted elements called for dismissal of the complaint summarily. Ordered accordingly.
Pronounced in the open Forum on this the 31st day of January 2012.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
