Tamil Nadu

StateCommission

CC/256/2015

Mrs.Neelaveni, W/o.Manikumar - Complainant(s)

Versus

Lavanya Hospital, Rep by its Dr. Gowri Paramasivam, and 2 Others - Opp.Party(s)

B.Vijayakumar

25 May 2022

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

            Thiru.R.VENKATESAPERUMAL … MEMBER

 

C.C. No.256 of 2015

                                                    

                               Orders pronounced on:     25.05.2022

 

Mrs.Neelaveni,

W/o.Manikumar,

Door No.2/2, Kural Kuttai 642 154,

Udumalpet Taluk,

Tiruppur District.                                 … Complainant

 

vs.

 

1. Lavanya Hospital,

rep. by Dr.Gowri Paramasivam,

No.2, Ramasamy Street,

Udumalpet 642 126,

Tiruppur District.

 

2. Dr.Gowri Paramasivam,

Lavanya Hospital,

No.2, Ramasamy Street,

Udumalpet 642 126,

Tiruppur District.

 

3. Dr.Raja,

P.K.D. Hospital,

Pollachi, Coimbatore District.                       … Opposite Parties

 

             For Complainant              :  M/s.B.Vijayakumar

             For Opp. Parties.              :  M/s.AAV Partners

This Complaint came up for final hearing on 13.04.2022 and, after hearing the arguments of the counsel for the parties and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

 

O R D E R

 

R.Subbiah, J. – President.

 

             Alleging medical negligence on the part of the Opposite Parties on the ground that, while performing Lap Assisted Vaginal Hysterectomy for removal of uterus, surgical injury was negligently caused by the OPs to the urinary tract that resulted in the embarrassing complication of urinary incontinence for a long duration till it was treated through surgical interventions at some other hospital, the complainant seeks this  Commission to direct the OPs to jointly and severally pay her Rs.45 lakh as compensation for the service deficiency and negligence on the part of the OPs, besides litigation costs.

 

             2. In brief, the case of the complainant is as follows:-

             The complainant had severe stomach ache during the monthly periods, for which, she had approached the 1^st OP/Hospital of the 2^nd OP/Doctor, who diagnosed her to have a cyst/Fibroid Uterus and advised for removal of the same by surgery.   Although it was accepted by the Doctor/OP2 that she would provide treatment on cashless basis through the Chief Minister’s Medical Insurance Scheme, after her admission in the 1^st OP Hospital as in-patient on 22.05.2014,  the 2^nd OP/Doctor informed the complainant that a sum of Rs.20,000/- need to be paid by stating that, under the Insurance Scheme, only Rs.15,000/- would be granted and insisted her not to disclose about the payment of Rs.20,000/- either to the Insurance Officer or anybody else.  The complainant had no money to pay the said sum, however, her husband borrowed and paid it to the 1^st OP/Hospital. On 23.05.2014, in the evening, the 3^rd OP/Laparoscopic Surgeon came from Pollachi and performed the surgery and, at that time, along with the 2^nd OP, her son, a medical student, was also present there.  The complainant, who was undergoing surgery with local anesthesia, could hear the 2^nd OP instructing her son, the medical student, to do this and that way and if the position was changed, other place would get injured, as a way of training him. After surgery, it was conveyed to the complainant that the cyst was removed, however, she had pain and associated difficulties and, despite the same, on 28.05.2014 evening itself, she was discharged from the 1^st OP/Hospital.  From the next date/29.05.2014, she started urinating without any sense or control, whereupon, she visited the 2^nd OP and conveyed the condition, for which, the 2^nd OP told that there was a hole created by the scissors at the time of surgery in the Urinary Tract.  By saying so, she went to another room taking her mobile phone and came back panicked to tell the complainant to go to Pollachi and meet the 3^rd OP, who conducted the surgery.  At about 1 PM., the complainant and her husband went to the 3^rd OP, who met them only at 5 PM. and, on examination, he told that the Urinary Tract on the right side has a hole due to incision of knife at the time of surgery.  He further told   that, at the 1^st OP/Hospital, a scan should have been taken before discharge, but, it was not done.   By further stating that continuous urination would affect the kidneys, he asked her to immediately go to Abhirami Hospital, Coimbatore.  The complainant’s husband told him that they had no money, for which, the 3^rd OP, by stating that he cannot do anything and that, for 1 in 100 cases, such complication might occur, irresponsibly replied that, even if they would file a complaint, after 2 or 3 years, it would go in vain.  At Abhirami Hospital, on payment of Rs.10,000/-, tests were taken and she was inserted a stent, yet, she had urinary incontinence, for which, she was advised to undergo a major open surgery by removal of the stent.    The said surgery was done with the CM’s Medical Insurance Scheme free of cost and the complainant was treated in the ICU.  She had to undergo the said surgery due to the negligent conduct of the OPs in causing injury to the urinary tract while performing surgery at the 1^st OP/Hospital.   She received treatment in Abhirami Hospital in different spells for about 50 days.  Thereafter, on 20.08.2014, she was admitted again as In-patient there and this time, the old stent was replaced with a new one.  Although now there is no urination without control, still, the irritation persists.   She feels pain and numbness in the operated spot because of consecutive anesthesia for almost 4 times.  Now, the complainant is pushed to a situation that she is not able to do the routines without the assistance of other family members.   Since she is advised to empty the bladder once in two hours, she is not able to sleep peacefully for the fear that if the bladder is not emptied, it may lead to infection. Due to the medical negligence on the part of the OPs, she had become dependent relating to her daily ordeals and not even able to manage her family/children.  Despite borrowing and spending a sum of Rs.2,00,000/-, she is undergoing a great deal of hardship and mental agony due to the service deficiency on the part of the OPs, who are jointly and severally responsible for her pathetic condition.  Subsequent to the representation given by her on 13.06.2014 to the CM’s Special Cell, an enquiry was conducted by the Joint Director on 27.08.2014, in which, the complainant participated and answered all the queries that were put to her, however, it is not known as to whether the OPs were enquired or not.  She was also not furnished with any of the documents submitted to the enquiry authority on the side of the OPs.  While so, on 11.11.2014, the complainant wrote a letter to the 2^nd OP, calling upon to furnish her with the case history and surgery details from 21.05.2014 to 28.05.2014, for which, except few records, complete details were not furnished.  A legal notice, dated 10.02.2015, was also sent by her seeking a total compensation of Rs.50 lakh but in vain. Hence, the present complaint, seeking the relief as aforementioned.

 

             3. The OPs resist the complaint by filing a written version, wherein, among other things, it is stated thus:-

             On 20.04.2014, the complainant had approached the 1^st OP/Hospital and consulted the 2^nd OP for complaints of menorrhagia & dysmenorrhea of one year duration. The scan report revealed fibroid uterus, for which, hysterectomy was advised.  On 21.05.2014, the complainant was admitted in the 1^st OP/Hospital and, after examination, consent was obtained by duly informing the patient about hysterectomy and its possible complications during and after surgery.  Details of all investigations done were informed to the Insurance Authorities through e-mail and their approval was obtained.   Anesthetist examined the complainant and gave fitness for the surgery.  On 23.05.2014, under spinal anesthesia with intravenous sedation, laparoscopy assisted vaginal hysterectomy was done by the 3^rd OP assisted by the 2^nd OP.   There were no complaints of any pre or post-operative care and, on 28.05.2014, the complainant was discharged with an advice to come for review after 4 days for suture removal.   On 30.05.2014, the complainant visited the 1^st OP/Hospital with the complaint of leaking water through vagina, whereupon, she was immediately referred to the 3^rd OP for further management. On the same date, the complainant consulted the 3^rd OP, who referred her to the Urology Specialist at Abhirami Hospital, Coimbatore.

             In fact, after consultation with the 2^nd OP on 20.04.2014, ultra sonogram was taken on 26.04.2014 to show bulky uterus with fibroid in the fundus and also cystic lesion in the right ovary, whereupon, the 2^nd OP clearly explained to the complainant the need for hysterectomy and its complications as well as after-effects, hence, the allegation that she was diagnosed only to have a cyst is false and frivolous.  The complainant was admitted under CMCHI scheme for hysterectomy, her consent was obtained and further, the OPs had also got approval from the insurance authorities.   The complainant never paid any sum to the 1^st OP Hospital as alleged in the complaint and they have given it in writing to the liaison officer at the time of discharge.   On 23.05.2014, it was the 3^rd OP, who performed the surgery, and not the son of the 2^nd OP as alleged by the complainant.   Dr.V.P.Karthik, son of the 2^nd OP, who was fully qualified, was also present at the time of surgery and there is nothing wrong in the surgeon explaining him the procedure about the correct ways of doing the surgery.  There was no complaint during the post operative days till discharge.  On 28.05.2014, when the complainant was discharged, her general condition was good & afebrile and there was no complaint by her. On 30.05.2014, when the complainant consulted the 2^nd OP for dribbling of urine through vagina, she examined her and referred to the 3^rd OP without any delay and the allegation that the 2^nd OP told that there was a hole created by the scissors at the time of surgery in the urinary tract is a falsehood.  The urinary incontinence suffered by the complainant is a common complication of hysterectomy, as evident from the Medical Literature which states that it is a known complication occurring due to anatomical closeness of Ureter and Bladder to the uterus.  The complication developed after 7 days of surgery means that it is not due to any cut or injury caused during surgery.   It is due to the ischemia and necrosis followed by urine leak upon the procedure done to arrest the bleeding during surgery.   For the said known complication of hysterectomy surgery, the OPs cannot be held liable.  The allegation made against the 3^rd OP that he stated to the effect that the urinary tract on the right side sustained a hole due to incision of knife at the time of surgery and that the 1^st OP/Hospital should have taken a scan before discharge, but, they did not do so, is totally false and imaginary.   Immediately after the advice given by the 3^rd OP, on the same date/ 30.05.2014, the complainant got admitted in Abhirami Hospital, where she was cured of the complications, after undergoing treatment. There is no contra opinion made regarding the treatment given by the OPs and no service deficiency is pointed out anywhere, either in the discharge summary issued by the Abhirami Hospital or any other document.  The treatment provided by the OPs was in accordance with strict medical protocol; hence, the OPs are not liable to pay any sum as claimed by the complainant.  The OPs were called for enquiry by the Joint Director of Medical Services and they furnished all the details connected to the complainant.   Urinary leak after hysterectomy occurs as a known complication of that surgery and the same is supported by numerous medical literature.    The OPs have also furnished the complainant with the records sought for by her and further, detailed replies were given by them to the legal notice issued by her.  There is no scope even to allege any negligence or service deficiency against them; hence, they sought for dismissal of the complaint.

 

             4. To substantiate the claim and counter claim, both sides filed their respective proof affidavits.  On the side of the complainant, 21 documents have been marked as Exs.A1 to A21 while the OPs filed 5 documents as Exs.B1 to B5.  Further, the OPs have also adduced the opinion given by the Expert/Dr.T.Ramani Devi, who furnished a Reply for the Questionnaire filed by the complainant.  

 

             5. Learned counsel for the complainant, by pointing out that, during the course of the proceedings, the OPs filed a petition for adducing expert opinion and the same was allowed, whereupon, for the questionnaire filed by the complainant, a Reply was given by the said expert/Dr.T.Ramani Devi, and, by adverting to the 1^st question in the questionnaire - ‘From the records does it appear that the negative effects of the surgery such as uncontrolled urination has been explained to the patient while obtaining informed consent?”, and to the answer of the said expert “ureteric fistula are very very rare complication that can happen during hysterectomy and hence this complication does not warrant routine explanation and consent”, and thereafter, to question No.5 “Is there any method to notice the cut in the ureter” and the answer there-for “there is no specific method per se to notice cut injuries”, would submit that the above answers solicited from the Expert introduced by none else than the OPs themselves would go to show that the post-operative complication of ureteric fistula/urinary incontinence was never explained while obtaining informed consent and further, the complainant, as a rare instance, was inflicted with a surgical injury in the ureter that resulted in uncontrolled urination which, even according to the OPs, could not have been detected by any post-operative methodology unless the patient comes and informs about it. Thus, the complainant had to unnecessarily suffer ureteric fistula only due to the negligence on the part of the OPs at the time of removing the uterus by causing surgical incision to the ureter, for which, she was inserted with a stent at Abhirami Hospital and the same did not contain the ailment, whereupon, she had to undergo a major open surgery by getting admitted as In-patient for about 50 days in different spells there and finally, on 20.08.2014, the old stent was replaced with a new one, however, still she is undergoing the scars and implications of the wrong surgery with continuing irritation, numbness in the operated spot, etc.    Inasmuch as the impact of the negligence and service deficiency on the part of the OPs is still reflected in the day-to-day life of the complainant, in that, she has become a dependent of other family members for her daily routines, the OPs must be held accountable for the same and the relief sought for may have to be granted.

            

             6.  Per contra, learned counsel for the OPs, by briefing the factual sequence, particularly adverted to the scan reports pertaining to the complainant that revealed fibroid in the uterus equivalent to half the size of the uterus, and submitted that the condition of the fibroid occupying half the space in the uterus was well explained to the complainant and her husband, however, they misconstrued the fibroid in the uterus to be a cyst and the same is reflected in the averments made in the complaint; as such, they are guilty of misinforming the facts to this Commission.   No money was ever collected from the complainant since she availed the government insurance scheme and all necessary tests and investigations were performed prior to the surgery and, in fact, she was clearly informed of the post operative complications and, only after obtaining due consent in that regard as evident from Ex.B2, the surgery was performed on 23.05.2014 and it was uneventful.  Till the 5^th Post-Operative day, she was found to be comfortable without any complaint, whereupon, she was discharged on 28.05.2014 with an advice to come for a review after four days for suture removal.  On 30.05.2014, when she visited the 1^st OP with the complaint of leakage of water through vagina, the 2^nd OP examined and advised her to consult the 3^rd OP, who referred her to the Urology Specialist at   Abhirami Hospital, Coimbatore, for further management.  According to the learned counsel, the above details would go to show that the OPs exercised due care and diligence while performing surgery and also in timely referring her to the Urologist, thus,  there is no scope at all to allege any medical negligence on their part as also any service deficiency.  Since the complainant now grounds her case on the basis of the urological problem, having taken treatment for the same from Abhirami Hospital at Coimbatore, there is no point in making a claim against the OPs without even impleading the said Hospital as a necessary party.  Further, no expert evidence is adduced on the side of the complainant to prove any negligence on the part of the OPs so as to suggest that she endures any resultant damage till date, only due to the adverse impact of the surgery performed by the OPs.  The self-projected claim of the complainant that she had suffered the urological problem due to surgical incision at the Urinary Tract by the OPs during the course of hysterectomy, without even any suggestive proof for the same, cannot be given any face value or credence to hold against the OPs. To reiterate the point that negligence cannot be attributed to a Doctor so long as he is performing his duties to the best of his ability and with due care and caution, learned counsel pressed into service handful of decisions including the one in Jacob Mathew v. State of Punjab (Manu/SC/0457/2005), and submitted that this is not a case where it is substantiated enough that the OPs failed to exercise a reasonable degree of professional care and hence, the claim of the complainant may have to be rejected in toto.   By so submitting, learned counsel sought for dismissal of the complaint as devoid of any merit.

 

             7. Having regard to the rival submissions advanced on either side, the only question that needs to answered is -

             “ as to whether the urinary incontinence/ureteric fistula suffered by the complainant was due to any medical negligence on the part of the OPs in causing injury to the Urinary Tract at the time of performing Lap Assisted Vaginal hysterectomy on the complainant for removal of ‘fibroid uterus’ and if so, as to whether the steps taken by them immediately after the visit made by the complainant, whining about the post operative complication of urinary incontinence, are reflective of reasonable post-operative medical care expected on their side, so as to turn down the case and claim of the complainant and to tilt the scales in favour of the OPs?”

 

             8.  To examine the above issue, at the first instance, let us straight away look into the opinion of Dr.T.Ramani Devi, Laparoscopic Gynaec Surgeon, introduced by none else than the OPs.  In respect of the UI suffered by the complainant, the relevant portion of the opinion rendered by her runs thus:-

            “Ureteric injuries are a common complication of lap assisted hysterectomies and the incidence is around 0.1% to 1% of all hysterectomies.  Most likely the injury (ureteric fistula) would have occurred by accidental injury due to cautery. These type of lesions are identified after a week’s time. …. This has happened to the patient unfortunately who falls under 0.1% to 1% and not due to negligence.”

The above opinion is very specific on two points – 1^st one is, ureteric injuries are common complications of Lap Assisted Hysterectomy which the complainant had  undergone at the hands of the OPs and the 2^nd one is, most likely, the injury to the ureter would have been caused by cautery, a surgical device. A combined reading of the expert opinion on the point under discussion clearly shows that it was only during the course of surgery, ureteric injury was inflicted with the surgical device that resulted in UI suffered by the complainant.   The said expert also stated in clear terms that such lesions/injuries are identified only after a week’s time, which means, a person who has undergone such surgery shall be considered for discharge only after undergoing a full week clinical monitoring as in-patient.  But here, the OPs apparently failed to do so.  Without even waiting at least for a week’s time, they hurried to discharge the patient admittedly just in five days.  Such conduct also suggests otherwise that they themselves were not conscious enough about the post-operative complication of ureteric injury/ureteric fistula and it follows, they would not have conveyed the minute complications of the surgery, in particular the serious complication of UI, to the complainant at the time of getting informed consent from her.   That is why the undated consent form under Ex.B2 is found to be general in nature and it is not informative enough to discern that the patient was fully apprised of the whole range of complications that would arise after hysterectomy, in particular, about ureteric fistula. In the Version also, it is only stated that the patient was informed about the surgery and its possible complications and nowhere, it is specifically stated that the OPs particularly informed the patient about the possibility of ureteric fistula. Further, the medical literature/MEDSCAPE produced by the OPs under the caption “Vesicovaginal and Ureterovaginal Fistula/MEDSCAPE” is straight to the point by stating at the inception itself ‘Vesicovaginal and ureterovaginal fistulas are perhaps the most feared complications of female pelvic surgery.  More than 50% of such fistulas occur after hysterectomy for benign diseases such as uterine fibroids….”.  Thus, it is apparent; such problem is the most feared complication occurring after hysterectomy for uterine fibroid.   The expert also, in that line, stated that ureter injuries are a “common complication” of such surgery.   In the light of such clear details available, we have no hesitation to hold that the complication of UI suffered by the complainant is only due to the negligence on the part of the OPs at the time of performing the lap assisted vaginal hysterectomy. 

             Now coming to the other segment of the question framed, it is seen that, at the time of her discharge from the 1^st OP Hospital on 28.05.2014, although the complainant was instructed by the OPs to come for review after four days, she had to visit the 1^st OP Hospital in advance on 30.05.2014, complaining UI.  On such visit made by the complainant at the 1^st OP in a very embarrassing post-operative situation, according to the 2^nd OP, she examined and asked her to go and meet the 3^rd OP.  It is really distressful to look at the above offhand attitude exhibited by the 2^nd OP towards the ailing complainant. If really, with all conscience, she subjected the complainant to a proper medical examination and found out the cause behind the complication, she would have referred her to an Urologist then and there, but, to somehow get rid of the patient, she casually instructed the complainant to go and visit the 3^rd OP, who is a Laparoscopic Surgeon, which means that, rather than suspecting ureteric fistula which is  a possible complication of lap assisted vaginal hysterectomy,  even then, she was only doubtful about the possibility of  any surgical injury inflicted by the 3^rd OP that impelled her to send the complainant to the 3^rd OP.  Even in that case, by considering the awkward position in which the complainant was placed, at least, she could have made arrangements to immediately summon the 3^rd OP to the 1^st OP Hospital as done by her at the time of performing hysterectomy, for the purpose of finding out the cause behind the complication being suffered by the complainant.  It is very unfortunate that she did not exercise any such reasonable medical care in handling the complainant. Because of her unconcerned conduct, the complainant, who was already undergoing the trauma of UI, was made to travel to the place of the 3^rd OP, who referred her to Abhirami Hospital for further management.  It is not the case of the 3^rd OP that, before referring the patient to the other hospital, either he himself contacted the 2^nd OP and discussed with her about the examination done by her upon the complainant just earlier at the 1^st OP Hospital or that the 2^nd OP shared with him the details of the examination done by her about the problem being faced by the complainant.  Thus, it is clear that both the Doctors/OPs apparently failed to provide the required medical care and attention expected from them as medical professionals at a crucial time when the patient was suffering from Post-operative complication of UI. We are of the considered opinion that, from the point of getting consent upto the level of post-operative care, at all stages, the OPs miserably failed to exercise reasonable professional care in the case of the complainant that ultimately drove her from pillar to post with the burdensome complications of UI which could be treated/cured only at some other hospital, however, she is said to be experiencing the impact of the medical negligence in her day-to-day life, for which, they are legally liable to suitably compensate the complainant.  In this regard, although the complainant has claimed a sum of Rs.45 lakh as compensation, considering the fact that, although she is fully recovered from UI, yet, she undergoes the effect of the surgeries to which she was subjected to as a result of medical negligence and service deficiency on the part of the OPs particularly in extending proper post-operative care, we are of the view that awarding a token compensation of Rs.5 lakh would meet the ends of justice.

 

             9. In the result, the complaint is allowed in part, by directing the OPs to jointly and severally pay the complainant a sum of Rs.5,00,000/- (Rupees five lakh only) as compensation for the service deficiency and medical negligence on their part and a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses.   The OPs are directed to pay the said sum to the complainant within a period of 2 months from the date of receipt of a copy of this order and failure in making payment within the time stipulated will carry interest for the amount awarded @ 7.5% p.a., from the date of complaint till the date of payment.

 

Sd/-                                                                Sd/-

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT

•       Date            Description of Documents

Ex.A1          17.05.2014      Medical Prescription of 1^st& 2^nd OP.

Ex.A2          21.05.2014 to

                   26.05.2014      Discharge Summary of the 1^st OP.

Ex.A3          27.05.2014      Histopathology Report

Ex.A4          21.05.2014 to

                   28.05.2014      Discharge Summary of the 1^st OP

Ex.A5          30.05.2014      Receipts issued by Sree Abhirami Hospital

Ex.A6          30.05.2014 to

                   10.06.2014      Discharge Summary of Sree Abhirami Hospital

Ex.A7          11.06.2014 to

                   16.07.2014      Discharge Summary/Note of Sree Abhirami Hospital

Ex.A8          31.05.2014 to

                   21.08.2014      Cash Bills issued by Sree Abhirami Hospital

Ex.A9          13.06.2014      Complainant’s representation to the CM

Ex.A10        22.07.2014      Scan Report of Sree Abhirami Hospital

Ex.A11        20.08.2014      Lab Reports of Sree Abhirami Hospital

Ex.A12        20.08.2014      Bills of Sree Abhirami Hospital

Ex.A13        20.08.2014 to

                   21.08.2014      Discharge Note of Sree Abhirami Hospital

Ex.A14        21.08.2014      Bill for observation charges.

Ex.A15        27.08.2014      Complainant’s  Statement before Joint Director

Ex.A16        27.10.2014      Lab Report of Sree Abhirami Hospital

Ex.A17        27.10.2014 to

                   28.10.2014      Discharge Note/Cash Receipts of Sree Abhirami Hospital

Ex.A18        11.11.2004      Complainant’s letter to 2^nd OP with Ack. Card

Ex.A19        10.02.2015      Complainant’s legal notice with Ack. Card   

Ex.A20        17.02.2015      Letter of the 2^nd OP to the complainant with cover

Ex.A21                                OPs Reply to the legal notice

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE OPs

•         Date            Description of Documents

Ex.B1               21.05.2014           Copy of Case Sheet

Ex.B2                                               Copy of Consent Form

Ex.B3                                               Copy of Written Undertaking

Ex.B4               28.03.2013           Copy of Dr.V.P.Karthik’s Provisional Regn. Certificate

Ex.B5               26.05.2014           Copy of Discharge Summary

 

 

 

 

 

Sd/-                                                                Sd/-

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT