Tamil Nadu

StateCommission

FA/100/2018

The Manager, Karpaga Vinayaga Institute of Medical science & research centre - Complainant(s)

Versus

Mageshwari - Opp.Party(s)

Dr.B.Cheran

09 Feb 2023

ORDER

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

 

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

             Thiru.R.VENKATESAPERUMAL     … MEMBER

 

F.A. No.100 of 2018

(Against the Order, dated 15.02.2018, passed in C.C. No.22/15, on the file of the DCDRF, Chengalpattu)

                                  Orders pronounced on:  09.02.2023

The Manager,

Karpaga Vinayga Institute of

Medical Science & Research Centre,

China Kolambakkam.           ... Appellant / 1^st Opposite party.

 

            vs.

 

1. Mageswari (Deceased)

W/o.Chinnathambi.         … 1^st Respondent / Complainant.

 

2.Kumar, S/o.Chinnathambi

3.Manoharan, S/o.Chinnathambi.              

(R2 & R3 – Legal Heirs of

the Deceased 1^st Respondent/Complainant), 

residing at Thandarai Puducherry,

Perumbakkam Post,

Madurantakam Taluk,

Kancheepuram District.

    … 2^nd & 3^rd Respondents / LRs of Deceased Complainant.

 

4. Dean,

Arignar Anna Memorial Cancer Hospital,

Regional Cancer Center,

Karapettai,

Kancheepuram.    ... 4^th Respondent / 2^nd Opposite party.

 

             For Appellant           :  M/s.Dr.B.Cheran

             For R 2 & 3              :  M/s.K.Thilagaraj

             For R 4                    :  M/s.T.Ravikumar

 

This Appeal came up for hearing on 06.12.2022 and, after hearing the arguments of the counsels appearing 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.

 

             The appellant herein challenges the order, dated 15.02.2018, passed by the DCDRF, Chengalpattu, in C.C. No.22 of 2015, partly allowing the complaint filed by the 1^st respondent herein on the ground that the 1^st OP/appellant herein had committed medical negligence that resulted in consequential sufferings to the complainant and issuing a direction to the 1^st OP to pay a compensation of Rs.3 lakh, besides a sum of Rs.10,000/- towards costs of the proceedings, to the complainant/R1.

 

             2. For the sake of convenience, the parties are referred to herein as per their respective rankings before the District Forum.

             The case of the complainant, in brief, runs thus:-

             The complainant had severe stomach pain, for which, she consulted the 1^st OP/Hospital, where she was diagnosed with Malignant Ovarian Mass Papillary Serous Cystadenoca – Stage III and she was treated there as an in-patient, as per IP No.1110130004.   After the operation performed in the said Hospital,  due to oozing of urine and pus from the operated site, she underwent more sufferings than that of pre-surgical period.   Thereupon, for a second opinion, she was taken to Meenachi Medical College & Research Institute, Endathur, Kancheepuram, where it was stated that the surgery performed at the 1^st OP was done in such an absurd manner that the internal organs were damaged, for which, no corrective method was available and that the complainant had to continue her life with such sufferings.  Consequently, the complainant was taken to the 1^st OP-Hospital only to hear that she would not survive.  Due to the surgery performed in a negligent manner by the 1^st OP, the complainant had been subjected to a painful life with incessant sufferings and therefore, she issued a legal notice to the said OP on 17.12.2014 but in vain.  Hence, the Complaint is before the District Forum, seeking to direct the OPs to pay to the complainant a sum of Rs.15 lakh as compensation for the deficiency in service on their part.

 

             3. The 1^st OP resisted the complaint by filing a written version, inter alia stating thus:-

             It is no doubt true that the complainant was admitted in the 1^st OP during October, 2013 with abdominal pain on and off for three months.  The CT scan/histo pathology reports revealed ovarian tumour and the huge mass adhesions indicated that cancer tumour markers were high.  After explaining the nature of the disease to the relatives and obtaining the consent of the patient’s son, Laparotomy was performed on 28.10.2013.  After careful dissection, the tumor was removed, however, the uterus could not be removed since the tumour mass was adherent to the adjoining organs like bowel/bladder.  To find out the spread of the disease, omental biopsy was taken from the inner line of abdomen/Peritoneum and the report showed cancer.  Since the Urinary Bladder was also affected, a catheter was kept therein for 14 days and, after its removal, the patient was discharged on 16.11.2013.  A detailed report including biopsy slides were issued to her along with a referral letter to Govt. Anna Cancer Hospital at Kancheepuram for further treatment.   This OP claimed Rs.44,680/- only towards surgery and other charges and the amount sanctioned under the CM’s Health Care Scheme was Rs.35,000/-. Hence, the allegation that money was extorted from the patient is denied.  The other allegation that the complainant’s internal organs were damaged and that it was represented to her that she would suffer the complications for the rest of her life are denied.  This OP has given the best treatment to the patient for cancer and the present complaint is frivolous in nature and filed only to extract money from this OP and hence, the same is liable to be dismissed.

 

             4. In their version, among other things including the line of treatment provided by them to the patient and a surgery performed to remove the residual adhesions, the 2^nd OP mainly highlighted the points that they were not impleaded at the instance of the complainant, rather, it is the 1^st OP which had passed on the litigation to them; that the 1^st OP could have resorted to an extensive procedure called Cytoreductive Surgery for removal of all the affected organs instead of the minimum procedure of ovarian tumour removal and omentum/peritoneal biopsies alone; that, after finding residual disease/adhesions, the 2^nd OP’s medical team swung into action by subjecting the patient to Interval Cytoreductive Surgery on 04.04.2014; that faecal fistula is one of the complications after a second abdominal surgery; that infection and fistula formation can occur post-operatively in patients like the complainant who is a diabetic and who has already received Chemotherapy for ovarian cancer; and that the patient was discharged  “against medical advice” on 18^th Post-operative Day/22.04.2014” and if she had stayed in the Hospital till the completion of the full course of treatment that would minimum take one month, she might have had the benefit of full recovery from the complications; as such, no case is made out against this OP.

 

             5. Before the District Forum, the complainant filed 7 documents as Exs.A1 to A7, however, no document was filed by the OPs and, by an order dated 15.02.2018, the said Forum, while holding that no case was made out against the 2^nd OP, ultimately concluded that it was due to the medical negligence on the part of the 1^st OP, the complainant had to undergo the consequential sufferings and, on that basis, fastened the liability on the 1^st OP to pay to the complainant a sum of Rs.3 lakh as compensation and Rs.10,000/- towards litigation expenses.  Now, the aggrieved 1^st OP has come up with this present First Appeal.

          

           6. Learned counsel for the 1^st OP primarily states that the only grievance-cum-complication of the complainant, namely, the unresolved motion problem through the operated site, was a direct result of the ‘interval cytoreductive surgery’ performed by the medical team of the 2^nd OP and the said complication is not traceable to the Laparotomy or the biopsies done at the 1^st OP.  That being so, having allowed the complainant to implead the 2^nd OP, in the absence of requisite particulars in the pleadings of the complainant, the District Forum ought to have either directed the complainant to present her exact allegations against the 2^nd OP, or else, it should have self-examined from the materials made available as to whether the medical team of the 2^nd OP had committed any negligence, particularly when the 2^nd OP themselves have stated in their version, rather in clear terms, that the faecal problems suffered by the complainant were the possible complications arising from the surgery performed by them.  That being so, without properly sifting the facts in a wholesome manner, the District Forum rushed to find fault with the 1^st OP by assigning illogical reasons and miserably failed to appreciate the core segment of post-operative complications suffered by the patient, three days after the interval cytoreductive surgery performed at the 2^nd OP, in the form of discharge of motion from the surgical site.  Learned counsel re-states that, after the impleading of the 2^nd OP,  only the cause title alone was changed just to give the description of the 2^nd OP; in such circumstances, the District Forum ought to have analysed the entire materials to reach a factual finding as to on whose part exactly the negligence lies, but, very unfairly, in the absence of single medical record filed on the side of the 2^nd OP, it rushed to record a very absurd finding that there was no whispering by the complainant of any alleged negligence on the part of the said OP in treating the patient.   Similarly, the 1^st OP having acted clearly in terms of the standard medical protocol for doing the Laparotomy and biopsies, on a totally strange reasoning that the 1^st OP ought not to have performed the said procedure at all and that they should have referred the patient to a higher centre of cancer specialty, the District Forum conveniently shifted the whole liability upon the 1^st OP.  Again, despite non-filing of medical records on the part of the 2^nd OP for the treatment given by them to the patient, the District Forum held extraneously that the said OP had provided stage-by-stage treatment for curing the cancer while the fact admitted by none else than the 2^nd OP themselves remains that the ultimate complication suffered by the patient was a result of the ‘interval cytoreductive surgery’ performed by the medical team of the 2^nd OP; as such, the impugned order is not only absurd and erroneous but also biased and hence, it absolutely calls for interference by this Commission, he pleaded ultimately.

             Per contra, learned counsel appearing for the 2nd OP/Hospital states that, having regard to the pervasive extent of cancer that has already spread to various organs, the proper procedure that ought to have been adopted by the 1^st OP is Cytoreductive Surgery, whereas, they had restricted it to Laparotomy & biopsy of Omentum and Peritoneum; as such, it was an incomplete surgery.  Secondly, it was not at the instance of the complainant, the 2^nd OP was dragged to this litigation; rather, it was the 1^st OP who passed on the complaint to them.  Thus, there was no scope for the complainant to level any allegation against the 2^nd OP, who did their level-best to retrieve the patient from the ghastly grip of the cancer and, in fact, they succeeded in that endeavour to a great extent, however, the complainant, by not adhering to their medical advice to continue treatment by being in-patient at least for one month and by urging for discharge, had quit the treatment course against the medical advice and unfortunately, died thereafter.  Therefore, no fault can be found with them or the line of treatment provided by them.

           Learned counsel appearing for the  legal heirs of the deceased-complainant supported the impugned order and pleaded to uphold the same.

 

             7. We have carefully considered the rival submissions advanced on behalf of the parties.

             From a reading of the impugned order, we find that, at the beginning of the discussion, the District Forum chose to comment upon the drafting of the complaint for the lack of details therein regarding the date of admission in the hospital, payment of fees, date of operation conducted by the 1^st OP, complaints of physical pain, negligence committed by the 2^nd OP, etc.  Therefore, when the complaint is shallow and it lacks material particulars and, more particularly when the patient had undergone two different surgeries for cancer at two different hospitals of the OPs concerned, utmost care and caution is required to be exercised in finding out as to exactly on whose part the negligence or deficiency lies.  In this regard, we hasten to add, the District Forum, without thorough examination of the facts from the available materials, rushed to give a clean chit to the 2^nd OP and similarly, to hold against the 1^st OP by assigning two frail reasons that, considering the gravity of the disease, the 1^st OP ought to have referred the complainant to the specialized institute that treats for cancer and that the 1st OP had accidentally caused injury to the bladder.  Further, in the absence of the medical records pertaining to the treatment provided by the 2^nd OP,  the District Forum very generously endorsed the line of treatment given by the 2^nd OP by observing that the procedural steps were followed by them stage by stage “for curing carcinoma/cancer”. Now, let us examine whether the reasonings given by the District Forum are sound enough to sustain its order or not.

 

             8. As rightly adverted to by the District Forum, of course, the pleadings in the complaint lack basic details, but, from  the admitted facts in the respective versions filed by the Opposite Parties and from the particulars available in the documents marked by the complainant, there is no doubt, as could be seen from Ex.A2/Discharge Summary, that the complainant took treatment at the 1^st OP Hospital from 11.10.213 to 16.11.2013 and there, she underwent a procedure called Laparotomy (a surgical incision into the abdominal cavity “for diagnosis” or “in preparation for a major surgery”) and was also done biopsy of Omentum (a fatty tissue that starts in the stomach  and drapes over the intestines) and Peritoneum (tissue that lines the abdominal wall and covers most of the organs in the abdomen).   It is the argument of the 1^st OP that, after diagnosing the patient with Malignant Ovarian Mass Papillary Serous Cystadenoca – Stage III, with due consent of the patient’s son, they performed Laparotomy and, during the course of the procedure that also covered the bladder area, they had to encounter very dense adhesions, due to which, accidentally, injury was caused to the bladder, however, they set it right with two layers of suture.  Since the procedure indicated dense adhesions and revealed that it has already started spreading to other organs including bladder and that full remedy was not possible through the present procedure, they not only advised the patient but also provided her with a recommendation letter to go to the 2^nd OP/Hospital.  It is specifically stated that only after doing the Laparotomy and the biopsies, the permeating nature and extent of cancer could be detected and that being so, there cannot be any logic in finding fault with the 1^st OP in doing the procedure, and stating that they ought not to have taken up the procedure itself.  It is stressed that the accidental damage caused to the bladder owing to dense adhesions was also instantly set right and no complication arose there-from, hence, there is no scope to allege any negligence/deficiency in service against them. 

             In this regard, we have perused Ex.A2, from which, we find that the 1^st OP is transparent enough to state –

       ‘Bladder not visualised due to dense adhesions and accidental bladder injury caused’. 

It is further stated that –

        ‘Bladder was sutured in two layers with a suprapubic catheter in situ.’

In the light of the above notings, it is clear that the accidental injury caused to the bladder due to dense adhesions was sutured and further, in their version, the said OP specifically stated that the urinary catheter was kept for 14 days and thereafter, it was removed.  At this juncture, the grievance of the complainant/deceased, projected by her in the proof affidavit filed in the vernacular language, assumes significance.  She has stated therein inter alia that, after the treatment taken by her at the 1^st OP, when she again visited them for abdominal pain, they examined her and stated that she had another tumour that needs surgery, for which, they had also given a letter, recommending treatment at the 2^nd OP, where, she was advised for removal of the uterus and, three days after the uterus removal/hysterectomy at the 2^nd OP, she suffered discharge of faecal matter from the surgical site.  She further stated that when the said problem was complained to the Doctors of the 2^nd OP, they privately called her son and told that his mother/the patient would not survive beyond 10 days.  She also stated that herself and her son ardently pleaded the Doctors of the 2^nd OP to save her, however, they insisted her to leave the Hospital. One should not forget the aspect specifically pointed out to us that the complainant was not a highly educated lady and she was undergoing the painful torment of cancer and hence, the shortcomings in her pleadings may not be taken adverse note of, particularly when the other papers, if examined carefully, could give a clear picture of the matter in issue. In this regard, the above statement of the deceased/complainant in the Proof Affidavit throws sufficient light that the complication of faecal discharge from the surgical site suffered by her was only subsequent to the surgery performed at the 2^nd OP Hospital. The said aspect is also corroborated by the statement/admission of the 2^nd OP, who states thus in para No.15 of the written version:-

        “15.  …. The patient passed motion on 10^th Post-operative day.  On 14.04.2014 (11^th Post operative day) patient found to have minimal fecal discharge from Laparotomy wound and diagnosed to have low output fecal fistula. …..”             

A careful and conjoint reading of the statement of allegation made by the complainant herself in her proof affidavit as well as the above extracted version of the 2^nd OP would go to show that the actual complication suffered by the complainant for which she filed the consumer case is traceable only to the interval cytoreductive procedure performed at the 2^nd OP  on 04.04.2014 and, in no way, it has any nexus or connection to the 1^st surgery/Laparotomy and Biopsies done on 28.10.2013 by the 1^st OP, in respect of whom, from the proof affidavit, we find, except the grievance that she had abdominal pain, the complainant had no other complication from the Laparotomy performed upon her at the said OP/Hospital.  

             In the above circumstances, the specific finding of the District Forum that the 1^st OP could have then and there referred the patient to a cancer specialty centre does not sound to logic, for the reasons that Laparotomy done by the 1^st OP is said to be a procedure performed to diagnose the  underlying causes for the abdominal pain and it is also said that, in many cases, once the issue is identified, the same can be fixed in that procedure itself; that biopsy is also nothing but a diagnostic process; that, in this case, upon taking up the procedure and after noticing the density of the adhesions that prevented them from removing the cancerous uterus and further noticing the spread of cancer to the vital organs like bladder, peritoneum, etc., the 1^st OP has rightly/timely advised the patient to approach the 2^nd OP; that, after her discharge from the 1^st OP on 16.11.2013 as evident from Ex.A2, in adherence to the advice of the 1^st OP, the patient visited the 2^nd OP on 18.11.2013 itself, which factum is reflected at para No.2 of the written version filed by the 2^nd OP; and that, in such circumstances, when the subsequent Medical Records under Ex.A3, dated 26.11.2013, does not show any injury to the Bladder and it clearly mentions recurrence of ovarian tumor with uterine and bladder invasion with peritoneal deposits and further, when the problem faced by the complainant viz., discharge of faecal matter from the surgical site, did not result from the procedure performed by the 1^st OP, there is no logic or reason at all to rope in the 1^st OP and to rest the liability on them.   One another aspect is, the 1^st OP has documented everything including the accidental damage caused to the bladder and the suturing done by them to correct it, in their discharge summary under Ex.A2.  The complainant herself stated in the proof affidavit that, after the Laparotomy, only for abdominal pain, she visited the 1^st OP, who issued a recommendation letter, advising the complainant to take further treatment at the 2^nd OP.  It is not the case of anyone that, after the discharge of the patient from the 1^st OP on 16.11.2013 and before commencement of her treatment at the 2^nd OP from 18.11.2013, in the intervening period of one or two days, the complainant had suffered any serious complications so as to link those complications with the Laparotomy performed by the 1^st OP.  Thus, there is no link or connection exist between the actual complications of faecal discharge as complained by the patient, which is evident from her proof affidavit, and the Laparotomy procedure performed by the 1^st OP.   When a medical team takes up a particular procedure of diagnosis-cum-invasive treatment, which in their clinical wisdom would benefit the patient, but however at the time of undertaking such procedure, it is sensed clinically that the actual ailment is so severe that it cannot be completely remedied with that procedure itself and has to be handled only at a Centre of higher speciality, it is not proper and fair to find fault with the said medical team by stating that they should not have ventured at all to diagnose/treat the patient and they should have then and there referred him/her to the higher specialty.  When there is no single test that can accurately diagnose cancer and the diagnostic procedure itself is cumbersome and quite challenging, courts should be slow in finding fault with the medical team in a case of this nature, particularly when the element of negligence or deficiency on the part of the Opposite Party concerned viz., the 1^st OP, is hardly visible from the said OP’s medical records that have been marked through the complainant. Thus, both factually and logically, we find no justification to endorse the finding of the District Forum in holding the 1^st OP negligent.

           Now, coming to the role of the 2^nd OP, no doubt, after the visit of the patient to their Hospital on 18.11.2013,  they are said to have taken all possible steps to remove the residual adhesions.  They performed the procedure called Interval Cytoreductive surgery only on 04.04.2014, which was about 5 months after the Lapartomy done by the 1^st OP on 28.10.2013, and according to the complainant, after the said surgery, she started encountering a very problematic and inconvenient complication of faecal discharge from the surgical site.  It is the defence of the 2^nd OP that Faecal Fistula is one of the complications that could occur after a second abdominal surgery, particular for a patient like the complainant, who was a diabetic and already subjected to chemotherapy. It is their further defence that such complication could have been contained if the complainant continued the treatment with them as in-patient at least for a month, but, contrary to their medical advice, she got herself discharged on the 18^th Post-operative day that was on 22.04.2014.  On the contrary, it is the allegation of the complainant/patient in her proof affidavit that, after she started suffering the issue of motion discharge from the surgical site, she was forced by the Doctors of the 2^nd OP Hospital to leave the Hospital despite her desperate appeal to them to save her. In such circumstances, between these two diametrically opposite versions, to prove their credence, in all fairness, the 2^nd OP/Government Institution, who are more expected to properly maintain the medical records of the patients, ought to have marked/produced the case records of the complainant to show that they almost cured the cancer and that the discharge was at the insistence of the patient, against the clear medical advice issued by them.  But, they miserably failed to do so.  Not even before this Commission, they have produced a single paper to suggest that their version in this regard is true.  It is because of the reason that Doctors at the Government Hospitals are providing their services on humanitarian basis with a sense of dedication and such services are made available to the public free of cost, they are kept outside the purview of consumer liability.  Such privilege would be available to them only so long as they act with a spirit of service and without any room for wilful negligence or deliberate service deficiency.  The defence normally available to the Government Doctors under the exclusionary segment corresponding to free service aspect is not absolute, for, it would be no longer availed once they are proved to have committed or indulged in blatant negligence or wilful service deficiency.  In other words, if the facts and materials prove glaring negligence and deficiency in service on the part of such Doctors, there is no embargo for the consumer fora to bring them within the fold of consumer liability.  In this case also, when the allegation made by the complainant that she was forced to leave the Hospital by denying continuation of treatment is quite disturbing and so horrendous, by withholding the medical records of the patient and not showing that the patient got the discharge at her own insistence against their medical advice, the 2^nd OP have driven us to only draw an adverse inference against them.   When the probability that a too-fragile cancer-affected patient like the complainant, who  started experiencing the very odd post-operative complications of interval cytoreductive surgery that was performed upon her for removing the cancer-affected organs, would not insist on her own for the discharge, has not been disproved by the 2^nd OP with the medical records in their possession, thereby, their self-serving statements in the pleadings are not sufficient enough to enervate the appalling allegations against them, we are bound to hold that the 2^nd OP are guilty of both negligence and service deficiency.  In the facts and circumstances, we are of the view that, while confirming the quantum awarded by the District Forum, since the liability is wrongly fixed upon the 1^st OP, what needs to be done is shifting the liability to pay the compensation on the 2^nd OP instead of the 1^st OP.

 

                     9. In the result, the first appeal is allowed by dismissing the complaint against the 1^st OP, however, since now we have held that the negligence/deficiency lies on the part of the 2^nd OP, the compensation and litigation expenses together viz., Rs.3,10,000/- (Rupees three lakh ten thousand only), as awarded by the DCDRF at Chengalpattu, in C.C. No.22 of 2015, by its order dated 15.02.2018, is directed to be paid by the 2^nd OP/4^th respondent herein to the legal heirs of the complainant/R2 & R3 herein, within six weeks from the date of receipt of a copy of this order, failing which, the said sum shall carry interest @ 9% p.a from the date of the complaint till the date of actual payment. If any deposit has been made by the 1^st OP, the same shall be refunded to them forthwith.  

 

R.VENKATESAPERUMAL                                                    R.SUBBIAH, J.

MEMBER                                                                                  PRESIDENT.

ISM/TNSCDRC/Chennai/Orders/FEBRUARY/2023.