BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P. No. 27/2004 Filed on 16.01.2004 Dated : 15.04.2009 Complainant: Sudharmini, W/o Paranadan, “Paras”, VRA 11, Vattavila, Attingal. (By adv. Philip M. Prasad) Opposite parties: K.R. Hospital, Attingal represented by its Managing Director, K.R. Narayanan. (By adv. R. Somanathan)
B. Sarada Devi, W/o K.R. Narayanan, Gynaecologist and Surgeon, K.R. Hospital, Attingal. (By adv. R. Kunjukrishnan Potti)
Dr. Sivaprasad, Surgeon, K.R. Hospital, Attingal. (By adv. B.S. Prasad Gandhi)
Dr. A.G. Priyadarsini, K.R. Hospital, Attingal. (By adv. B.S. Prasad Gandhi)
Dr. Vijayaratnam, Radiologist, K.R. Hospital, Attingal.
(By adv. K. Muralidharan Nair) This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 11.08.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 16.03.2009, the Forum on 15.04.2009 delivered the following: ORDER SRI. G. SIVAPRASAD: PRESIDENT
The facts leading to the filing of the complaint are that complainant had some gynaecological problems and consulted the 2nd opposite party in the 1st opposite party hospital on 25.09.2003 and undergone surgery for removal of uterus and ovaries on 30.09.2003 by the 2nd opposite party, that complainant had post operative pain and she was discharged on 16.10.2003 with advice by the 2nd opposite party to check up six weeks after discharge. On 08.12.2003 complainant had unbearable pain in the abdomen and she was again admitted on 09.12.2003 and she was discharged on 15.12.2003. Since there was visible deterioration in the condition of the complainant the relatives of the complainant took her to KIMS hospital, Thiruvananthapuram on 18.12.2003. U.S. Scan and C.T. Scan were done and she was subjected to a surgery for removal of a surgical sponge. The surgery revealed that a surgical sponge about the size of longer than a text book with its tail was there in the terminal ileum. The final diagnosis of KIMS Hospital was intestinal obstruction and umbilical hernia. The opposite parties were either negligent and reckless or attempting to hide the reckless act of negligence which they perpetrated on complainant. The surgical sponge with a tail was negligently deposited by the 2nd opposite party during hysterectomy done in the 1st opposite party hospital on 30.09.2003. Hence this complaint for compensation of Rs. 3.5 lakhs from the opposite parties. Opposite parties entered appearance and filed version contending that complaint is frivolous, vexatious and malafide. It is admitted that complainant was admitted in 1st opposite party hospital on 25.09.2003 with complaints of Polymenorrhagia. Complainant met 2nd opposite party for treatment and surgery was conducted on the complainant on 30.09.2003. The treatment metted out to the patient was strictly in accordance with the general approved practice. The intra operative and post operative period were uneventful. Complainant was discharged on 16.10.2003. There was no negligence on the part of opposite parties. No loss or damages were caused by the opposite parties to the complainant so as to make them liable to compensate her. Hence opposite parties prayed for dismissal of the complaint with exemplary costs to the opposite parties. The points that arise for consideration are:- Whether there has been medical negligence on the part of opposite parties? Reliefs and costs.
In support of the complaint, complainant has filed affidavit only. Complainant did not produce any document. Complainant has never adduced expert evidence. In rebuttal, opposite parties 2 to 4 have filed affidavits and Ext. D1 was marked. Points (i) & (ii):- It has been the case of the complainant that complainant had some gynaecological problems, consulted the 2nd opposite party in the 1st opposite party hospital on 25.09.2003 and undergone surgery for removal of uterus and ovaries on 30.09.2003 by the 2nd opposite party. Complainant had post operative pain and she was discharged on 16.10.2003 with advice by the 2nd opposite party to check up six weeks after discharge. On 08.12.2003 the complainant had unbearable pain in the abdomen and she was again admitted on 09.12.2003 and was discharged on 15.12.2003. During the said stay, medicines were given and ultra sound scan was taken on 12.12.2003. Further complainant says that since there was visible deterioration in the condition of the complainant, she was admitted to KIMS Hospital, Trivandrum on 18.12.2003 and that she was subjected to U.S. Scan and C.T Scan and later she was subjected to a surgery for the removal of a surgical sponge. Further complainant alleges that the surgical sponge with a tail was negligently deposited by the 2nd opposite party during hysterectomy done in 1st opposite party hospital on 30.09.2003. The said foreign body of surgical sponge was found inside the intestine. This is the process of migration by which foreign body/surgical sponge entering the intestine by a period of lasting 1 or 2 months till opposite parties have filed their versions. The definite case of the 2nd opposite party is that the surgical sponge allegedly recovered was not left or deposited by the 2nd opposite party. It is submitted by the 2nd opposite party that the complainant(patient) was admitted on 25.09.2003 with complaints of polymenorrhagia for 6 months, that the patient had last child birth 19 years back, and had a PPS (Post Partum Sterilization) done at V.V. Clinic following the same, that the patient gave history of having undergone surgery for donating her kidney in 1998 and that the patient gave a history of minimal pre-menstrual bleeding. Submission by the 2nd opposite party is that on the day of admission, the patient was found to have hypertrophied and unhealthy cervix which was bleeding to touch, that per vaginal examination showed uterus retroverted and of 8 to 10 weeks size with restricted mobility. A diagnosis of 'chronic cervicitis with pelvic infection' was made and the patient was posted for fractional curettage and biopsy cervix to be done under General Anaesthesia the next day as an out patient procedure. The patient also underwent pre-anaesthetic check up and other pre-operative investigation and biopsy cervix was done under General Anaesthesia on 26.09.2003. The intra and post operative period were normal. The patient was admitted on 29.09.2003 for hysterectomy to be done on 30.09.2003. After pre-operative check up the patient was taken up for abdominal hysterectomy on 30.09.2003. 2nd opposite party asserts that the surgery was done under strict asepsis and with utmost care and caution. The pre-operative and post operative mop and instrument count was meticulously taken as is routinely done. It was made sure that no mop or instrument was missing. The intra-operative and post-operative period were uneventful. The abdomen was opened by Supra pubic transverse incision. Uterus was enlarged to 10 week size, both ovaries adherent, adhesions released and Total Abdominal Hysterectomy with Bilateral Salpingo Oopherectomy done and abdomen closed in layers after obtaining haemostasis. The patient had a normal post-operative period and had complaints of loose stools on 02.10.2003 and the patient did not have any fever post operatively till 09.10.2003. On 09.10.2003 patient was noted to have fever 1000 F and Urine was taken for culture and sensitivity on 09.10.2003 and the result obtained on 11.10.2003, showed growth of staphylococci sensitive to Cefotaxim(Omnatax) and Gentamicin. The patient was continued on antibiotics and other supportive treatment and the abdominal distension decreased on the next day. On 16.10.2003 there was no abdominal distension. An ultrasound abdomen done on 16.10.2003 by Dr. Vijayaratnam (5th opposite party) showed normal right kidney, and normal liver, spleen and pancreas. The patient was discharged with necessary treatment advice. The patient reviewed post-operative on 12.11.2003. Later on 08.12.2003 the patient came with history of abdominal pain in epigenetic region. On examination the abdomen was soft and other systems were normal. The patient also gave a history of having undergone total dental extraction after the post-operative review. The patient reviewed on 09.12.2003 with history of pain abdomen in epigastric region. As pain persisted, the patient was admitted on 09.12.2003. The patient was given Inj. Tramodol, Inj emeset 1 ampoule IV, IV fluids and Antacids. On 10.12.2003, the patient was seen by Dr. A.G. Priyadarsini, the 4th opposite party. The patient's abdomen was soft and patient was slightly dehydrated. Oral medications were stopped and IV medications were started with Ryle's tube aspiration. On 11.02.2003, there was no abdominal pain present. Ryle's Tube of the patient was removed and oral fluids and light food were started. Other tests were done. An ultra sound scan was done on 12.12.2003 by the 5th opposite party and showed features of subacute intestinal obstruction with suspected hernial defect at the PPS scar site. The patient was seen by the surgeon Dr. Sivaprasad, the 3rd opposite party on 12.12.2003. He noted the history of vomiting present earlier which stopped two days back and the history of not having passed motion on that day and of slight pain abdomen. He made a thorough examination and found the abdomen not distended, soft with no marked tenderness except mild tenderness in the umbilical region. There was no hernial defect at the PPS site. A diagnosis of Subsiding Subacute Intestinal Obstruction was made and the patient was given a course of Tab Omeprazole 20 m.g. BD before food and other symptomatic medications. On 13.12.2003 the patient passed motion normally and there was no abdominal distension and no vomiting, indicating clear improvement. The medications continued. The condition of the patient remained better and uneventful during the rest of the hospital stay till the date of discharge on 15.12.2003. The evidence adduced by the 2nd opposite party and other opposite parties by filing proof affidavits remains uncontroverted as opposite parties have not been cross examined by the complainant. Though complainant adduced evidence by filing affidavit, complainant was absent for cross examination even after notice. Though witness schedule was filed by the complainant, no steps was seen taken to examine the witnesses. Complainant has not adduced affidavit of any expert doctor in support of her contention and her own affidavit alleging medical negligence on the part of opposite parties. It is pertinent to point out that in cases of medical negligence, medical negligence against a doctor has to be proved by expert opinion. Cogent and clinching evidence must be adduced to prove that doctors failed in their duty to take due and proper care and doctors gave treatment contrary to established procedure. Without there being any expert evidence adduced by the complainant, complainant cannot point out accusing finger against opposite parties, who had given treatment to their ability and to their standing. Unless complainant pointed out how and to what extent opposite parties were guilty of lack of expertise and lack of due and utmost care, she cannot say that opposite parties were guilty of medical negligence and therefore we are finding that in the absence of evidence in support of the complaint, no medical negligence can be attributed to the opposite parties. We find no substance in the complaint which deserves to be dismissed. In the result, complaint is dismissed. Parties shall bear and suffer their costs. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15th April 2009.
G. SIVAPRASAD, President. BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
O.P. No. 27/2004 APPENDIX
I COMPLAINANT'S WITNESS : NIL II COMPLAINANT'S DOCUMENTS :
NIL
III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS :
D1 - Original Case Sheet with respect to the complainant consisting of 65 pages. . PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | |
