Tamil Nadu

StateCommission

FA/728/2011

B.Poongodi & another - Complainant(s)

Versus

M.Soundiram - Opp.Party(s)

Anand ,Abdul and Vinoth Associates

12 May 2015

ORDER

 

                           BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION,CHENNAI

BEFORE :  THIRU.A.K.ANNAMALAI                        PRESIDING JUDICIAL MEMBER

                                                       TMT.P.BAKIYAVATHI                             MEMBER                                                                                  

F.A.NO.728/2011

(Against the order in CC.No.11/2009, dated 11.05.2011 on the file of DCDRF, Krishnagiri)

DATED THIS THE 12^th DAY OF MAY 2015

1.  Dr.B.Poongodi,

2.  S.Renganathan,

     Om Sakthi Hospital,

     D.No.4, Sengodipuram,                                    M/s.Anand, Abdul & Vinodh

     Near Bus Stand,                                      Counsel for Appellants / Opp.parties

     Dharmapuri 636 701.

-vs-

M.Soundiram,

W/o.R.Muniraj,

Ramapuram Village,

Periyakaradiyur Post,                                            M/s.B.L.Lawanya

Pochampalli Taluk,                                        Counsel for Respondent/Complainant

Krishnagiri District.

          The Respondent is the complainant filed a complaint before the District Forum against the opposite parties praying certain relief.  The District Forum allowed the complaint.  Against the said order, the appellants / opposite parties filed this appeal praying for to setaside the order of the District Forum in CC.No.11/2009, dated 11.05.2011.   

          This appeal coming before us for hearing finally on 27.03.2015, upon hearing the arguments on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order.

A.K.ANNAMALAI,  PRESIDING JUDICIAL MEMBER

          The opposite parties are the appellants.

2.       The complainant during the year 2007, on 22.12.2007 approached the opposite parties  for the  complaint of over  bleeding and  as per  their advice to undergo surgery for the removal of uterus she was admitted as inpatient in the opposite parties’ hospital on 26.12.2007 and the 1^st opposite party conducted laparoscopic surgery for removal of the uterus and was discharged on 31.12.2007.  After 4 days since the complainant found that the motion was discharged through vagina and on 5.1.2008 once again approached the opposite parties and got admitted to rectify the defects and another surgery was performed and was discharged on 18.1.2008 she was informed that the hole in the large intestine was blocked and an opening was provided on the left side of her abdomen for the discharge of the motion.  After two months when she approached she was informed that the hole was closed and she must come for another surgery to pass motion through the anus for which she was admitted as inpatient on 15.5.2008 and on 16.5.2008 the 1^st opposite party done the surgery for the same and she was in the hospital till 30.5.2008.  On 18.5.2008 once again she had the problem of passing of motion through vagina and one Dr.Rajasekar from Bangalore performed another surgery on 21.5.2008 and she was provided a motion passing way near the right side of the hip by closing the way already provided on the left side and another tube providing for discharging of urine.  On 29.5.2008 the complainant had the same problem and once again the opposite parties advised the complainant for surgery by Dr.Rajasekar from Bangalore informing no risk for the same.  On 30.5.2008 the complainant got discharged and admitted at Gunaseela hospital at Bangalore and minor surgery was done on 2.6.2008 and was discharged on 5.6.2008 and at the time of discharge she was provided with the bag for collection of motion, urinal tube was attached and found that there was no improvement and she got admitted at Manipal Hospital at Bangalore and consulted Dr.Janarthanan, on 16.6.2008 after having various tests and surgery was performed and on 2.7.2008 the complainant was discharged from Manipal Hospital, Bangalore on 7.7.2008.  After examination informed that after two months he will close the opening on the right side of the abdomen and for passing the motion through the anus and urine discharged and tube was removed.  On 10.11.2008 Dr.Janarthanan was consulted and he was informed that no colon portion available for doing another surgery in order to make way for passing motion through anus and thereby the complainant was compelled to live throughout her life with the bag attached to her abdomen for passing motion due to medical negligence filing consumer complaint claiming reliefs for payment of Rs.6,00,000/- as compensation with interest at 12% p.a. and to pay the cost of Rs.10,000/- .

3.       The opposite parties denying the allegations of the complainant contended that they have performed surgery was lap assisted vaginal hysterectomy and she was discharged on 30.12.2007 with the advice to come for review on 7.3.2008.  But on 5.1.2008 she approached the opposite parties with the complaint of discharge of motion through vagina and on 7.1.2008 fixed the surgery for 8.1.2008 and Dr.Rajasekar performed another surgery to closure of fistula by rectovaginal fistula on that date.  On 18.1.2008 she was discharged with the advise to take colostomy care with oral diet and she was advised to come after three months to close colostomy.  On  16.5.2008 the  colostomy  closure was  done by Dr.Muthu she complained of pain and serosanguinous discharged per vagina.  On 19.5.2008 she complained of pain and feculent discharge through vagina.  Recurrence of fistula diagnosed and Dr.Rajasekar, informed the nature of surgery was laparotomy-rectovaginal fistula closure with oriental interposition, bladder rent closure with loop ileostomy was done and again on 30.5.2008 she complained of the same and Dr.Rajasekar planned for further treatment and at the request of the complainant at 6.00 p.m., she was shifted to Gunaseela hospital on her own and on 2.6.2008 Dr.Rajasekar did the refashioning of loop ileostomy.  On 5.6.2008 she was discharged on good condition with the advise to come after 9 months.  Before that she went hastily to Manipal Hospital, Bangalore within 10 days from the date of discharge where Dr.Janarthanan referred the complainant to the 1^st opposite party for reassessment and did the surgery on 25.06.2008 and there was no negligence or deficiency on their part in giving treatment by the opposite parties.  The expenditure for treatment in Manipal Hospital alone was borne by the complainant.

4.       On the basis of both sides materials and after an enquiry the District Forum allowed the complaint by come to the conclusion that there was negligence on the part of the opposite parties in giving treatment which made the complainant to undergo four more surgeries and other ordeals and thereby directed the opposite parties to pay a sum of Rs.6,00,000/- as compensation and to pay Rs.5000/- as costs.

5.       Aggrieved by the impugned order the opposite parties have come forward with the appeal contended that the District Forum erroneously allowed  the complaint without taking into the consideration and materials as already reiterated in the version and proof affidavits based on the records and thereby the appeal is to be allowed.

6.       We have heard both sides arguments, contentions and perused the materials in this regard.  It is the admitted case of both sides that the complainant was first admitted in the opposite parties hospital for removal of uterus due to over bleeding on 22.12.2007 and she was operated on 26.12.2007 she was performed with lab assisted vaginal hysterectomy.  But subsequently on 5.1.2008 itself even though she was advised to come for review on 7.3.2008 admitted for complaint of discharge of motion through vagina in which a small leakage of fecal matter was seen in the vaginal part this was said to have been rectified under the consultation of Dr.Muthu by Dr.Rajasekar on 8.1.2008 by way of rectovaginal fistula closure and subsequently after discharge on 8.1.2008 with the advice to colostomy care which was fixed on 16.5.2008 and Dr.Muthu did the same.  But on 18.5.2008 she complained of pain and serosanguinous discharge per vaginum and recurrence of fistula was diagnosed by Dr.Rajasekar and performed another surgery on 21.5.2008 by Laparotomy-rectovaginal fistula closure and the same complaint was occurred on 30.05.2008 which was once again rectified by Dr.Rajasekar on 2.6.2008 by refashioning  of ileostomy with advice for coming after six months.  But the complainant alleged since the agony was not ended she approached Dr.Janarthanan on 6.6.2008 for checkup and on 25.6.2008 a surgery was performed and was discharged on 2.7.2008 with a provision of bag and a tube for discharging of motion and urine and subsequently  when  she was  approached on 7.7.2008 to remove the bag and tube for providing way for passing of motion through anus and on 10.6.2008 she was informed that there was no colan was available to make way for anus discharge which made the complainant to suffer with by carrying a discharge bag for motion and urine tube forever.  All these surgeries conducted by the opposite parties but only contended that they have discharged their duty in a dutiful and carefully in diligent manner in giving treatment and there was no deficiency or negligence on their part and they relied upon the rulings reported in Apex court judgments in Achutrao Harribhau Knodwa –vs- State of Maharashtra in which it is observed

“The skill of Medical Practitioners differs from doctor to doctor.  The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient.  Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution.  Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the Medical Profession and the court finds that the he has attended on a patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.”

and another ruling reported in I (2009) CPJ 263 (NC) and also relied upon medical literatures regarding the topics “rectovaginal fistula” and “Hysterectomy” even though  they relied  upon  such rulings and on perusal of the records and upon both sides contentions it is the case of the complainant that she was admitted with the opposite parties hospital for complaint of over bleeding for which removal of uterus was suggested for arrest of bleeding and accordingly the 1^st surgery was performed on 26.12.2007 and subsequently due to the complaint of discharge of motion through vagina on 8.1.2008 and subsequently on 21.5.2008 other surgeries were performed once again for the same complaint on 29.5.2008 she got admitted in Gnaseela Hospital, Bangalore and on 2.6.2008 a minor surgery was performed and on 5.6.2008 she was discharged and thereafter once again Dr.Janarthanan was consuslted and admitted as inpatient on 9.6.2008 and further surgery was performed on 25.6.2008 and finally when she was approached for closure of holes made in the body for the discharge of motion and urine and make the way of discharge of motion and urine through anus she was informed that there was no space for colon to set right the defects, she was compelled to carry the motion bag and urine tube for the simple reason since the complainant complained about the leakage of motion and urine per vagina instead of anus admitted that there was fistula perforation of the colon which could not be set right at the earliest point of time by the opposite parties therefore alleged recurrence of fistula for which a nature of surgery was Laparotomy-rectovaginal fistula closure with omental interposition, bladder rent closure with loop ileostomy which was done through sub amblical line incision.  The District Forum in its order discussed regarding the evidence of doctors through their affidavits and cross examination and it is observed in Ex.A1  “ it is not mentioned that adhesion was found between the outer wall of the uterus  and the  rectum and  so it cannot be  said that it was a case of difficult hysterectomy surgery.  Hence according to the learned counsel the opposite parties committed medical negligence.  On the contra, the learned counsel for the opposite parties 1 and 2 would contend that the complainant have to prove that the opposite parties committed medical negligence by  expert evidence.  There is no piece of evidence produced by the complainant to prove the medical negligence.  However the opposite parties have given the evidence of four gastroenterologist to show that there was no medical negligence committed by the opposite parties.  The complainant filed Ex.A11, the certificate of Dr.Karunakaran.  The said doctor has not stated that the opposite parties while doing surgery were negligence.  He has stated only the present condition of the complainant.”

and also observed in para-7 as follows : “ It is not in dispute that prior to the said surgery there was no problem for the complainant for passing motion through anus and there is also no evidence to show that either the rectum or the colon was damaged due to any other thing.  In Ex.B1, the case sheet in respect of the operation done on 26.12.2007 which contains the discharge summary, it is mentioned that the general condition of the complainant was good.  In Ex.B1, nothing is mentioned with regard to any damage either to the rectum or to the colon.  In Te Linde’s Operative Gynecology, Eighth edition by John A.Rock & John D.Thompson, in chapter 45 at page 1290 under the heading of Intra Operative Complication four types of complications mentioned affecting intestinal tract while doing gynecology surgery.  The first one is adhesion which  was  already  ruled  out.  The  second one  is insertion of  the  laparoscopic  trocar  which can injure the transverse, the right, or the rectosigmoied colon.  The third complication may occur at the time of suction dilatation and curettage for the termination of pregnancy. The fourth complication may occur at the time of application of radium, ceslum or iridium.  The third and fourth complications were not raised by the opposite parties was in the nature of Lab.assisted vaginal hysterectomy.  So there was a possibility for the second type of complication at the time of surgery.  But in Ex.B1 it is not mentioned that the second type of complication occurred at the time of hysterectomy surgery.  As per the medical text produced by the opposite parties when there was a possibility for such complication, duty is cost upon on the doctor who done the surgery to find out whether such complication arisen at the time of surgery or not and has to mention the same in the case sheet itself.  But it was not done.  It was argued that the complication happened only due to inherent poor tissues healing capacity of the complainant, tissues reactions to the suture material and the pressure effect on the tissues due to the previous tumor.  The Doctor who gave the affidavit Ex.B9 has deposed during cross examination that there is no mention in the discharge summary of the first operation that the wound healing failed.”

and also observed the opposite parties contended only the hysterectomy  surgery and not the surgeries relating to rectovaginal fistula and there is no material to show that the said Lap.assisted vaginal hysterectomy surgery was complicated surgery and during the same injury to the colon was possible due to the insertion of  the Laparoscopic trocar.  To rule out such possibilities no materials would be available to show that the opposite parties had taken place for medical examination and immediate rectification of the same at the earliest. Only after 10 days when the complainant reported the problems they have taken steps to repair the damage and thereby the District Forum came to the conclusion that there was deficiency and medical negligence on the part of the opposite parties with which findings we are in agreement in view of the reasons already discussed and thereby we find no error or infirmity with the findings of the District Forum in this regard.  As far as the quantum of compensation is concerned the District Forum awarded a sum of Rs.6,00,000/-.  The complainant alleged she had spent Rs.1,50,000/- for medical expenses and Rs.50,000/- for medicines and tonics and a sum of Rs.20,000/- towards hospital expenses and Rs.15,000/- for transport expenses.  The opposite parties contended that the complainant has spent only the expenses at Manipal Hospital at Bangalore.  The complainant has filed Ex.A10 series containing medical bills for opposite parties Hospital as well as for Manipal Hospital and the District Forum by observing at subsequent to the 1^st surgery nearly six surgeries were conducted to the complainant with ended finally with permanent disability to the complainant causing hindrance and also considering causing mental and physical sufferings awarded a sum of Rs.6,00,000/- and considering the contentions of the opposite parties that the complainant had only spent at Manipal Hospital alone and except for the 1^st surgery and other surgeries were done by the opposite parties free of cost and we are of the view that the compensation amount could be reduced to justifiably and accordingly  we are inclined to reduce from the sum of Rs.6,00,000/- to Rs.4,00,000/-  to that extent alone this appeal is to be allowed.

          In the result, the appeal is allowed in part by modifying the order of the District forum reducing the compensation from Rs.6,00,000/- to Rs.4,00,000/- only and confirming the rest of the order of the District Forum. 

          The directions shall be complied within a period of six weeks from the date of this order.

          No order as to costs in the appeal

 

P.BAKIYAVATHI                                                                   A.K.ANNAMALAI

    MEMBER                                                            PRESIDING JUDICIAL MEMBER

 

INDEX; YES/ NO

VL/D;/PJM/MEDICAL