KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL NO.402/05
JUDGMENT DATED 13.9.2011
RESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
1. The Director,
Mercy Hospital,
Payyavppr.P.O.
2. Dr.Shanthi,
Gynaecologist, -- APPELLANTS
Mercy Hospital,
Payyavoor.P.O.
(By Adv.M.K.George)
Vs.
Lilly Joseph,
Nellikkamthadathil House, -- RESPONDENT
P.O.Chempera – 670 632.
JUDGMENT
SHRI.M.V.VISWANATHAN,JUDICIAL MEMBER
Appellants are the opposite parties and respondent is the complainant in OP.No.464/99 on the file of CDRF, Kannur. The complaint therein was filed alleging medical negligence and deficiency in service on the part of the opposite parties. The respondent/complainant alleged that the opposite parties were negligent in doing the abdominal hysterectomy operation on 7.11.97 and due to the said negligence the complainant suffered mental agony, inconvenience and financial loss. It was further alleged that due to the said negligence in doing the hysterectomy by the second opposite party Dr.Shanthi the complainant had leaking of urine continuously and Vesico Vaginal Fistula was developed, that the said V V F was repaired at Kasturba Medical College Hospital, Manipal. Thus, the complainant claimed compensation of Rs.3 lakhs from the opposite parties.
2. The Opposite parties entered appearance and filed joint written version denying the medical negligence and alleged deficiency in service. They contended that the treatment and the hysterectomy operation were done with utmost care and caution and that the Vesico Vaginal Fistula (V.V.F) is a known and accepted complication of abdominal hysterectomy. Thus, the opposite parties prayed for dismissal of the complaint.
3. Before the Forum below, the complainant was examined as PW1 and Exts.A1 to A 22 documents were marked on her side. The second opposite party Dr.Shanthi was examined as DW1 and an expert doctor was examined as DW2. Ext.B1 case sheet maintained at the first opposite party hospital was also produced and marked.
4. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 24.12.04 allowing the complaint and directing the opposite parties to pay a sum of Rs.1 lakh as compensation to the complainant. They were also directed to pay cost of Rs.2,000/-. Aggrieved by the said order, the present appeal is filed by the opposite parties therein.
5. We heard the learned counsel for the appellants/opposite parties and also the learned counsel for the respondent/complainant. The counsel for the appellants submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that there was no deficiency in service on the part of the appellants/opposite parties in treating the complainant and in doing the hysterectomy on the complainant. He much relied on the testimony of DW2, the expert doctor examined before the Forum below and submitted that the Vesico Vaginal Fistula was developed not due to any negligence on the part of the second opposite party in doing he hysterectomy but V V F is a known and accepted complication of hysterectomy. Thus, the appellants prayed for setting aside the impugned order passed by the forum below. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the forum below. He argued for the position that there was medical negligence and deficiency in service on the part of the opposite parties in doing the hysterectomy operation on the complainant. Thus, the respondent/complainant prayed for dismissal of the present appeal.
The points that arise for consideration are:-
1. Whether the respondent/complainant had succeeded in establishing the alleged negligence on the part of the second appellant/second opposite party Dr. Shanthi in doing the hysterectomy operation on the complainant?
2. Whether the urine leakage and formation of VVF happened on account of lack of skill, care and caution on the part of the second opposite party Dr. Shanthi in doing hysterectomy operation on the complainant Lilly Joseph?
3. Whether the Forum below can be justified in finding the second opposite party, Dr. Shanthi as negligent in doing hysterectomy operation on the complainant Lilly Joseph?
4. Is there any sustainable ground to interfere with the impugned order dated 24-12-2004 passed by CDRF, Kannur in OP No. 464/1999?
Point Nos. 1 to 4 : These points are very much interrelated and so the same can be discussed together. For the sake of convenience, the parties to this appeal will be referred to according to their rank and status before the Forum below in OP No. 464/1999.
6. There is no dispute that the complainant Lilly Joseph approached the second opposite party, Dr. Shanthi at the first opposite party Mercy Hospital with the complaint of low backache, lower abdominal pain and white discharge from vagina. Admittedly, the second opposite party Dr. Shanthi advised the complainant to undergo hysterectomy operation for getting relief from her ailments and that the complainant consented for hysterectomy operation. Thereby the surgery was done by the second opposite party on 07-11-1997. It was an abdominal hysterectomy. According to the complainant, immediately after the hysterectomy operation she had continuous leaking of blood and urine through her vagina without any break and to prevent the same the second opposite party Dr. Shanthi introduced urinary catheter. On the other hand, the definite case of the second opposite party is that catheterization was done even prior to the hysterectomy operation and the same was retained for free flow of urine and to keep the bladder empty in order to reduce the chance for getting bladder injury during hysterectomy. It is the case of the second opposite party that on the second day of the hysterectomy it was noticed high coloured urine passing through the catheter and on routine microscopic examination of urine revealed presence of RBCS and so she advised to retain the catheter. It is also the case of the second opposite party that the catheter was there till the 5th post operative day and the same was removed on the 5th day on ascertaining that the urine is normal and that there was no problem or complaint on the 5th and 6th postoperative day. The definite case of second opposite party is that leakage of urine was noticed on the 7th post operative day and immediately catheter was applied. By the said leakage of urine through vagina, the second opposite party suspected Vesico Vaginal Fistula and that the catheterization was done as the same was the proper management in the event of leakage of urine through vagina due to V V F.
7. The Forum below believed the case of the complainant that there was continuous flow of blood and urine through vagina immediately after hysterectomy operation. But, the Forum below failed to appreciate the testimony of PW1, the complainant in its correct perspective. A close scrutiny of the testimony of the complainant would make it clear that catheter was introduced before the hysterectomy operation. PW1 at page 11 of her testimony has admitted the fact that catheter was introduced before the hysterectomy operation. The testimony of DW1, the second opposite party would show that catheter was inserted even before the hysterectomy and the same continued even after the hysterectomy. DW1 has also given the reason for inserting catheter before the hysterectomy operation and also for retaining the same till the 5th postoperative day. There is no reason or ground to doubt the aforesaid testimony of DW1. In this circumstance, it is hard to believe the case of the complainant that blood and urine was leaking through vagina immediately after the hysterectomy. It is to be noted that urine will flow through vagina only in the absence of catheter. The catheter was introduced for free flow of urine from urinary bladder. DW1, the second opposite party doctor and DW2 the Urologist have deposed about the practice of inserting catheter for emptying urinary bladder and also to reduce the chance for causing injury to bladder while performing hysterectomy procedure. The available evidence on record would show that the leaking of urine through vagina was noticed on the 7th postoperative day. The case of the complainant that there was urine leaking immediately after the hysterectomy cannot be believed or accepted.
8. Ext.B1 is the case sheet maintained at the first opposite party Mercy Hospital with respect to the treatment of the complainant Lilly Joseph. There is no reason or ground available on record to discard or disbelieve B1 case sheet. The complainant could not establish any ground to doubt the genuineness and correctness of B1 case sheet. The evidence of DW1 is strengthened by the entries in B1 case sheet. B1 would show that on the second day of the hysterectomy (08-11-1997) blood stained urine was noticed and that the urine was emptied through catheter. This entry in B1 case sheet would show that there was catheter and on 08-11-1997-blood stained urine was noticed and that on examination RBCS were detected in the urine. It would further show that the catheter was removed on 11-11-1997 and there was no urine leaking on 11th or 12th November 1997. The entries in B1 case sheet would also show that on 13-11-1997 leaking of urine was noticed and thereby catheterization was again done. It would also show that the second opposite party Dr. Shanthi had discussion with Dr. A.N. Thomas, Urologist, Kannur with respect to the urine leaking; that the Urologist advised to keep the catheter for 21 days and to administer antibiotics. The Urologist had also assured to see the patient at Kannur after 21 days. PW1, the complainant has also categorically deposed that she went to Kannur to have consultation with Dr. A.N. Thomas, Urologist and she went to Kannur with the catheter which was introduced from the first opposite party hospital. All these circumstances would show that the second opposite party had done everything possible to solve the problem which developed after the hysterectomy operation.
9. B1 case sheet would show that there was adhesion between bladder and uterus and the said adhesion was released. This entry in B1 case sheet would support the case of the second opposite party that there was adhesion between the bladder and uterus and with much difficulty she released the adhesion and removed the uterus. It is also the case of the opposite parties that the possibility to cause injury to bladder in hysterectomy operation is a known and accepted complication. The aforesaid case of the opposite parties has been approved by the testimony of DW2, the expert doctor examined on the side of the opposite parties. DW2 Dr. A.N. Thomas is the Urologist who had the occasion to treat the complainant for V V F. It is admitted by the complainant that DW2 conducted urethrocystoscopy and detected V V F of 15 mm size. It was DW2 who referred the complainant to Kasturba Medical College Hospital for repairing the VVF. DW2 has also deposed that VVF is a known complication of hysterectomy. He also explained about the two possibilities for developing VVF. It is categorically deposed by DW2 that V V F is a known complication of hysterectomy. He also deposed that V V F can be developed due to injury to tube or due to chronic infection of bladder. It is also deposed that leaking of urine can occur immediately after hysterectomy or few days after hysterectomy operation. He deposed that discharge of blood through vagina after hysterectomy operation is possible because of microscopic injury caused while doing hysterectomy procedure. He has also deposed about the procedure to be followed in case of leaking of urine on account of development of V V F. The evidence of DW2 would show that the second opposite party, gynecologist had followed all the necessary procedures by applying reasonable skill, care and caution. Thus, there is nothing on record to infer negligence on the part of the second opposite party in doing hysterectomy operation. The mere fact that there occurred leaking of urine and that V V F was developed after the hysterectomy operation cannot be taken as a ground to hold that it was due to negligence of the second opposite party in doing hysterectomy operation. DW2 has also deposed that in case of adhesion between the bladder and uterus the possibility for developing bladder injury and the resultant development of V V F is more. Thus, the evidence of DW2 would only support the case of opposite parties. There is no reason or ground to discard the testimony of DW2. It is to be noted that the complainant has no case that DW2 was not telling the truth before the Forum below. The competency of DW2 as a Urologist has not been doubted by the complainant. It is to be noted that the complainant has no complaint regarding the treatment and procedure followed by DW2. So, we have no hesitation to rely on the testimony of DW2, the expert Urologist. His oral evidence would give a clear indication that the second opposite party Gynecologist performed her role as a gynecologist in doing the hysterectomy operation on the complainant.
10. The complainant as PW1 deposed that there was negligence on the part of the second opposite party in doing the hysterectomy operation and due to the said negligence V V F developed. But no reason is stated for the alleged negligence. It is simply stated that there was negligence on the part of the second opposite party in doing the hysterectomy. The aforesaid vague statement of the complainant is not supported by any expert evidence or opinion. The burden is upon the complainant to prove the alleged medical negligence on the part of the second opposite party in doing the hysterectomy operation. But, the complainant has not adduced any expert opinion to substantiate her case regarding negligence. Doctor who subsequently treated the complainant has deposed about the possibilities for causing bladder injury and the resultant VVF. The evidence of DW2 would not support the case of the complainant.
11. The complainant was treated for V V F repair at K.M.C Hospital. But, the doctor who treated the complainant at K.M.C Hospital has not been examined in this case. There is nothing on record to substantiate the case of the complainant regarding medical negligence on the part of the second opposite party Dr. Shanthi. It is a settled position that a doctor can be made liable for medical negligence only if it is established that the treating doctor failed to exercise reasonable skill, care and caution in treating the patient or in doing the procedure on the patient. Unless and until it is established that there was lack of skill, care and caution, it is not fair to find the doctor negligent. It is also to be noted that the treating doctor has also got a duty to establish that he exercised reasonable skill, care and caution in treating the patient. The evidence on record would show that the second opposite party, the doctor who treated the complainant at the first opposite party Mercy Hospital exercised reasonable skill, care and caution in doing the hysterectomy procedure. If that be so, the Forum below cannot be justified in finding medical negligence on the part of the second opposite party in doing hysterectomy operation.
12. The second opposite party has also got a case that the chronic infection in the bladder resulted in causing necrosis of the tissue of urinary bladder. It is established in this case that the complainant was affected by serious cervicitis and she had undergone treatment for cervicitis. The urine examination also revealed presence of pus cells in urine. Ext.B1 would show the result of routine urine examination done at the first opposite party hospital. The results of those laboratory tests were also incorporated in B1 case sheet. Those results would show that there were pus cells in the urine. It is an indicative of existence of infection in urinary bladder. So, the case of the second opposite party that the V V F developed due to tissue necrosis in the urinary bladder on account of chronic infection cannot be ruled out. The aforesaid case of the second opposite party (DW1) is strengthened by the testimony of DW2, the expert Urologist examined on the side of the opposite parties. It is also to be noted that the only expert who was examined in this case is DW2. No other expert evidence is available in this case. The available expert evidence would make the case of the opposite parties believable and acceptable. But, the Forum below failed to appreciate the evidence of DW2 in its correct perspective. The medical authorities on this subject would also show that V V F is a known and accepted complication of hysterectomy. Thus, it can be concluded that the very development of VVF cannot be taken as a ground to hold that there was negligence in doing hysterectomy operation. In fact, the Forum below was guided by the fact that after the hysterectomy operation on the complainant, there was the development of V V F and it resulted in leaking of urine. The mere development of V V F and the resultant inconvenience or discomfort cannot be taken as a ground to fasten liability of medical negligence on the second opposite party, doctor who conducted the hysterectomy operation on the complainant. Thus, the Forum below cannot be justified in fastening liability on the opposite parties. The impugned order passed by the Forum below is liable to be quashed. Hence we do so. These points are answered accordingly.
In the result, the appeal is allowed. The impugned order dated 24-12-2004 passed by CDRF, Kannur in OP No. 464/1999 is set aside. The complaint therein is dismissed. The parties are directed to suffer their respective costs through out.
M.V. VISWANATHAN : JUDICIAL MEMBER
