IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,

Dated this the 27^th day of July, 2012.

Present : Sri. Jacob Stephen (President)

Sri. N. Premkumar (Member)

Smt. K.P. Padmasree (Member)

C.C.No. 119/2010 (Filed on 02.06.2010)

Between:

Leelamma Nandakumar,

Annadivayalil House,

Karinilam.P.O.,

Mundakayam,

Erumeli North Village,

Kanjirappally Taluk,

Kottayam Dist – 686 513.

(By Adv. K.M. Alexander)                                  ….    Complainant

And:

1. Mar Gregorious Memorial Muthoot-

            Medical Centre, rep. by its Managing

            Director, Mar Gregorious Memorial Muthoot-

            Medical Centre, Kozhencherry,

            Pin – 689 641.

        2. Administrator,  -do.  –do.

        3. Medical Superintendent,  -do.  –do.

(By Adv. G.M. Idiculla for opps. 1 to 3)

        4. Dr. Shiny Varghese, MD,

            Gynecologist,  -do.  –do.

Addl.5. Oriental Insurance Co. Ltd.,

            Plakkat Building, Market Jn.,

            Thripunithura.

(By Adv. P.D. Varghese)                              …..     Opposite parties.

O R D E R

Smt. K.P. Padmasree (Member):

                The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.

                2. The facts of the complaint is as follows:  Complainant is a resident of Kottayam District.  1^st opposite party is the Managing Director, 2^nd opposite party is the Administrator, 3^rd and 4^th opposite parties are the employees of the 1^st opposite party hospital.  Addl. 5^th opposite party is the insurance company.  Complainant resides about 50 kms. away from the 1^st respondent hospital but she was canvassed to the hospital through Muthoot Finance, Mundakkayam Branch offering free medical check up for the depositors of the bank under the health check-up scheme of the 1^st opposite party hospital.  On 25.07.2009 under the said scheme complainant was examined at the 1^st opposite party hospital and advised for immediate surgery on a finding after Transvaginal Scan that the uterus of the complainant was bulky in size. 

                3. Complainant was admitted in the 1^st opposite party hospital on 09.08.2009 and she had undergone keyhole surgery for removal of her uterus.  The operation was done by the 4^th opposite party under the supervision of the 3^rd opposite party.  1^st opposite party received ` 42,230 for the services provided to the complainant.

                4. After discharge the physical condition of the complainant became very weak, her urine continuously passed out which cannot be controlled.  The husband of the complainant informed the situation to the 4^th opposite party but she had not responded.  Complainant was taken to Amrita Institute of Medical Science and Research Centre on 31.08.2009 and on 22.09.2009 for check-up and diagnosed that there is vesicovaginal fistula and she had to undergo another surgery for repair of the same.  On 09.11.2009 she was admitted in Amrita Hospital for the surgery and after surgery she was discharged with the advice of 4 months rest to regain normal control for passing urine.  She has spend a sum of ` 48,264 as hospital bills and ` 8,750 for other expenses in connection with the treatments at Amrita Institute of Medical Sciences.

                5. According to the complainant, vesicovaginal fistula developed due to the keyhole surgery negligently done on 10.08.2009, by the 4^th opposite party.  Due to the negligence of 4^th opposite party at the time of keyhole surgery an injury was sustained to the urinary bladder of the complainant and urine passed out from the bladder directly to the vagina and it continuously passed out without any control.  Complainant’s allegation is that if the keyhole surgery was done with due care the bladder injury would not have occurred.  The rectification of urinary bladder injury during the course of same surgery is possible, but surgery for repairing a bladder injury subsequently is risky and the chance of success is very little.  4^th opposite party conducted the surgery negligently and discharged the complainant from the hospital, without any human consideration and it caused great hardships to the complainant.  The negligent surgery done by the 4^th opposite party caused great mental agony, pain and inconvenience and financial loss to the complainant and her family.  Complainant had sent legal notice to the opposite parties.  But 4^th opposite party only send a reply notice others not responded.  Hence this complaint for the realization of ` 6,62,244 from the opposite parties as compensation.

                6. Opposite party 1 to 3 entered appearance and 3^rd opposite party filed a common version for opposite party 1 to 3 with the following contentions:

                7. They admit that complainant underwent a total laparoscopic hysterectomy under general anesthesia on 10.08.2009 and discharged on 18.08.2009.  Before discharging from the hospital, 2 times complainant passed urine normally.  On 26.08.2009 patient made a complaint of urine leakage through telephone and she was advised to come over.  She approached opposite parties on 29.08.2009 and after gynaecological examination she was referred to urologist Dr. Joseph Manak and he advised to return for an Intra Venous Urography on 31.08.2009.  But the complainant never cared to follow up and could not contacted.  All other allegations are false.  There is no negligence on the part of these opposite parties. 

                8. 4^th opposite party is exparte.

                9. Subsequently as per the order in I.A.No.7/12, addl. 5^th opposite party was impleaded and they entered appearance and filed a version.  The contention in their version is also the same as that of the version filed by opposite party 1 to 3.  They admit that they have issued an ‘Error and Omission Medical Establishment policy’ in the name of 1^st opposite party, which was valid from 06.10.2008 to 05.10.2009.  With their above said version, they also prays for the dismissal of the complaint.

                10. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?

                11. The evidence of this complaint consists of the oral testimony of PW1, PW2 and Ext.A1 to A13.  Opposite parties have not adduced any oral or documentary evidence.  But they cross-examined the complainant.  After closure of evidence, both sides except 4^th opposite party and addl. 5^th opposite party filed argument notes and they were heard. 

                12. The Point:-  Complainant’s allegation is that she was canvassed to the 1^st opposite party hospital through Muthoot Finance offering free medical check-up for the depositors of the bank under the health check-up scheme.  After her check-up she was advised for immediate surgery for removal of her uterus.  The operation was done by the 4^th opposite party under the supervision of 3^rd opposite party.  After surgery complainant has developed leak of urine through her vagina due to vesicovaginal fistula and she had to undergo another surgery in Amruta Hospital, Kochi for repairing the same.  The vesicovaginal fistula was occurred due to the negligent and careless keyhole surgery done by the 4^th opposite party.  Hence opposite parties are liable to compensate her for her mental, physical agony and financial loss.

                13. In order to prove the complainant’s case, complainant filed proof affidavit in lieu of her chief examination along with 12 documents.  On the basis of the proof affidavit complainant was examined as PW1 and the documents produced were marked as Ext.A1 to A12.  One doctor was also examined from the side of the complainant as PW2 and one document produced from Amrita Hospital is marked as Ext.A13 through PW2.  Ext.A1 is the report of health check-up scheme.  Ext.A2 series is the medical bills of Muthoot Medical Centre.  Ext.A3 is the discharge summary of Muthoot Medical Centre.  Ext.A4 is the bill issued from Amrita hospital.  Exts.A5 to A5(c) series are the bills issued from Amrita Hospital.  Ext.A6 is the medical certificate dated 22.09.2009 issued from AIMS.  Ext.A7 is the discharge summary of Amrita Hospital.  Exts.A8 to A8(d) series are the tourist taxi receipts.  Ext.A9 is the copy of legal notice.  Exts.A10 to A10(c) series are the postal receipts of Ext. A9.  Ext.A11 to A11(c) are the postal acknowledgment cards of Ext.A9.  Ext.A12 series are the reply notice and its envelop.  Ext.A13 is the treatment records of the complainant issued from AIMS.

                14. On the other hand, the contention of the opposite parties is that after laparoscopic hysterectomy she was discharged on 18.08.2009.  After removing catheter complainant remained asymptomatic and urine passed normal. When the complainant approached opposite parties alleging urine leakage, gynaecological examinations done and she was advised by Dr. Joseph Manak to return for a IVU test on 31.08.2009.  But the complainant never cared to follow up and could not be contacted.  There is no negligence on the part of the opposite parties.

                15. In order to prove the contentions of the opposite parties, opposite parties has not adduced any oral or documentary evidence in their favour.  But they cross-examined PW1 and PW2.

                16. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record. 

                17. According to the complainant, she was canvassed to the 1^st opposite party hospital through the offer of a free medical check-up.  Opposite parties examined her and advised for immediate surgery instead of medicines.  After the surgery she had developed vesicovaginal fistula.  On going through Ext.A1 document it is found that at the time of free medical check-up her complaint is only general body pain.  Advice of immediate surgery to a healthy woman makes the circumstances doubtful.  Moreover, the opposite parties main contention is that the act of the complainant after surgery caused vesicovaginal fistula.  But the deposition of PW2 an expert doctor is as follows:- ‘Cu patient-\v Cu AhØ D­m-Im³ ImcWw? 10.09.2009-þ SnbmÄ¡v laparoscopic hysterectomy -\-S-¯nbXv aqe-amWv’.  From this statement, it is clear that V.V.F is the result of the keyhole surgery.  In the chief examination he also deposed as follows:- ‘patient-sâ Fs´-¦nepw {]hr-¯n-sIm­v V.V.F D­m-InÃ’.

              18. Opposite parties argument is based on the deposition of PW2 that “it is a known complication I do admit a surgical complication has happened in this particular case”.  For substantiating their contention mere oral submission on the part of the opposite parties is not enough.  It should be supported by concrete evidence from medical literature.  No medical literature brought in support of their argument.  So opposite parties cannot be justified in their contention that the complainant’s subsequent acts caused VVF and it is a known complication.  Opposite parties cannot escape from their liability for the fistula developed after the performing of a negligent surgery.  Thus the opposite party failed to prove their case with cogent evidence, that the fistula occurred due to the subsequent act of the patient and that they had done the surgery with diligence.  Hence the complainant’s allegation stands proved.  Hence this complaint can be allowed partly with cost and compensation.

                19. In the result, this complaint is partly allowed, thereby the opposite parties 1 to 4 are directed to pay an amount of ` 1,00,000 (Rupees One Lakh only) as compensation and ` 2,000 (Two Thousand only) as cost to the complainant along with a consolidated amount of ` 50,000 (Fifty Thousand only) being the medical expenses and other expenses meet by the complainant for the subsequent treatments within 30 days from the date of receipt of this order.  However, 1^st opposite party had a valid insurance policy with addl. 5^th opposite party and opposite parties 3 and 4 are the employees of opposite parties 1 and 2, opposite parties 1 and 2 are entitled to realize the whole amount from addl. 5^th opposite party after effecting the payment to the complainant.  In the event of non-compliance of this order by opposite parties, complainant is allowed to realize the whole amount from the 1^st opposite party with 10% interest per annum from today till the realization of the whole amount.

                Declared in the Open Forum on this the 27^th day of July, 2012.

                                                                                    (Sd/-)

                                                                           K.P. Padmasree,

                                                                                  (Member)

Sri. Jacob Stephen (President)          :       (Sd/-)

Sri. N. Premkumar (Member)            :       (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Leelamma Nandakumar

PW2  :  Appu Thomas

Exhibits marked on the side of the complainant:

A1     :  Report of health check-up scheme dated 25.07.2009. 

A2 series:  Medical bills (28 Nos.) issued by Muthoot Medical

           Centre, Kozhencherry to the complainant.

A3     :   Discharge summary dated 18.08.2009 issued by Muthoot

            Medical Centre., Kozhencherry to the complainant.   

A4     :   Bill dated 17.11.2009 issued from Amrita hospital, Kochi in

            the name of the complainant. 

A5 to A5(c):  Bills (4 Nos.) issued by Amrita Hospital in the name

           of the complainant. 

A6     :  Medical certificate dated 22.09.2009 issued by Amritha  

           Hospital.   

A7     :  Discharge summary of Amrita Hospital. 

A8 to A8(d) :  Tourist taxi receipts (5 Nos.). 

A9     :  Copy of legal notice dated 07.11.2009 sent by the  

           complainant to opposite parties 1 to 3. 

A10 to A10(c) series : Postal receipts (4 Nos.). 

A11 to A11(c)       :  Postal acknowledgment cards (4 Nos.). 

A12 series  :  Reply notice and envelop. 

A13   :  Treatment records of the complainant issued by AIMS.

Witness examined on the side of the opposite parties: Nil.

Exhibits marked on the side of the opposite parties:      Nil.                 

                                                                                                (By Order)

                                                                                                    (Sd/-)

                                                                                   Senior Superintendent.

Copy to:- (1) Leelamma Nandakumar, Annadivayalil House,

                    Karinilam.P.O., Mundakayam, Erumeli North Village,

                    Kanjirappally Taluk, Kottayam Dist – 686 513.

       (2) Managing Director, Mar Gregorious Memorial 

                    Muthoot Medical Centre, Kozhencherry,

                    Pin – 689 641.

               (3) Administrator,  -do.  –do.

               (4) Medical Superintendent,  -do.  –do.

               (5) Dr. Shiny Varghese, MD, Gynecologist,  -do.  –do.

               (6) Oriental Insurance Co. Ltd., Plakkat Building,

                    Market Jn., Thripunithura.

               (7) The Stock File.