IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 28th day of July, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No. 110/2011 (Filed on 06.05.2011)
Between:
Darly Mathew,
Valuparampil House,
Parumala.P.O., Thiruvalla. ….. Complainant
And:
1. Medical Superintendent,
Muthoot Medical Centre,
Kozhencherry,
Pin – 689 641.
2. Dr. Cherian Mathew MS,
Consultant,
General & Laproscopic Surgeon,
Muthoot Medical Centre,
Kozhencherry – 689 641.
Addl. 3. The Oriental Insurance Co. Ltd.,
Plakkat Building, Market Junction,
Thripunithura,
Cochin, Kerala – 682 301. …. Opposite parties.
O R D E R
Sri. N. Premkumar (Member):
Complainant filed this complaint against the opposite parties for getting a relief from the Forum.
2. Fact of the case in brief is as follows: Complainant has the complaint of pain in her abdomen and had been treated by Dr. Abraham Mathew, Surgeon, St. Gregoriose Hospital, Parumala. He referred her to Mr. Cherian Mathew, the 2nd opposite of this case. The 2nd opposite party made certain examination on her and advised to undergo a surgery as final remedy for her abdominal pain. With half mind she conceded for the same thinking that it is the only solution for the pain. The 2nd opposite party promised her of relief of pain after the surgery and she trusted his words.
3. Complainant was admitted in the 1st opposite party’s hospital with the broken leg in plaster cast on 21.10.2009 and was operated on 24.10.2009. Her left leg fracture was very painful and it was in plaster cast and the operation and the post operational period was very horrifying and painful for her both mentally and physically. As per the discharge summary she had undergone laparoscopic cholecystectomey with URS (Right) and DJ Stenting. But even after the surgery the same pain remained unabated and she approached the doctor with the complaint and the doctor pacified her stating that the present pain is of operation wound and it would subside after two weeks when it is healed and she would be all right by them. But the same pain continues during post operational period. When she was complained about the pain, the doctor got angry and shouted at her with annoyance and irritation. The doctor was not even ready to listen to her.
4. According to the complainant, even after spending huge amount and physical effort for the treatment and operation, she is suffering the same pain on her abdomen. The doctor without proper discussion or communication to her, in a hurry diagnosed her complaint as cholelithiasis and done laparoscopic cholecystectomy for the relief of her abdominal pain. The act of the doctor was unprofessional and immature and oriented to victimize her, who does not know anything about medical nuances and implications. The doctor, without observing, studying and without evaluation and laboratory evaluation took a hasty preconceived decision of surgery on her causing her huge loss and damage to her physical comfort and wealth. Besides this the operation gave her very traumatic experience and it worsened her health condition.
5. The surgery has caused untold pain and suffering to the complainant. The doctor promised her that the treatment would cure her pain for good. But she is still suffering from the same pain. According to other doctor she is now being treated, the diagnose and the treatment of operation prescribed by the 2nd opposite parties are contradictory and the treatment given by the 2nd opposite party is totally wrong. No prudent and reasonable doctor making out the real disorder of the patient. The act of the 2nd opposite party was abrupt and immature.
6. On 23.07.2010 complainant sent a legal notice against the hospital demanding compensation but they replied the notice refuting the charges. The surgery done by the hospital was unwarranted, unnecessary and it has eaten away her wealth and caused to deteriorate her physical condition. Hence this complaint for returning the medical expenses of ` 51,147 with 12% interest, ` 2,000 for further compensation for other expenses during inpatient and out patient treatment and compensation of ` 1 lakh for the mental and physical agony with cost.
7. Opposite parties entered appearance and filed version. Opposite parties 1 and 2 jointly filed version stating that the complainant was referred to the 2nd opposite party by Dr. Abraham Mathew, Senior Consultant Surgeon at St. Gregoriose Hospital, Parumala on 10.10.2009. The complainant was having a history of pain abdomen of 7 days duration. Her leg was already in plaster cast due to fracture. She was referred to 2nd opposite party for cholecystectomy as she was having stones in the gall bladder. She had brought an ultra sound report. The 2nd opposite party examined the complainant and the findings were suggestive of cholelithiasis (gall stones) resulting in Cholecystits. She was started on conservative management with antibiotics. This is the line of management advised as experience shows that in more than 90% of the cases, the symptom of acute cholecystits subsidies with conservative measures.
8. Complainant again consulted the 2nd opposite party on 19.10.2009. Since she was having persistent pain in the right upper abdomen with tenderness, the next step in management is operative intervention and cholecystectomy. This is the line of management which is advised in the text book of surgery. Before advising surgery, she was referred to Dr. Peter Manak, M.D., D.M., the Gastroenterologist of the 1st opposite party hospital. He gave his opinion that the complainant was having a symptomatic gallstone disease and agreed with the findings of the 2nd opposite party. He also suggested a repeat ultrasound examination. The ultrasound examination revealed cholelithiasis (gallistones) with 2 mobile stones and also kidney stones with mild fullness of the pelvicalyceal system. So on urologist’s opinion was advised. Complainant got admitted on 21.10.2009. She was seen by urologist, Dr. Joseph Manak.M.S., M.Ch (Uro) on the same day. He suggested on IVU. The complainant was again reviewed by Dr. Joseph Manak. He gave his opinion that the complainant was having horse shoes kidney with stone in the right ureter and suggested right URS (Ureterorenoscopy).
9. Since the complainant was having a symptomatic gall bladder disease and had right ureteric stone with fullness in the pelvicalyceal system, it was decided by all the doctors concerned to suggest laparoscopic cholecystectomy along with right URS. The pros and cones of the surgical procedure were explained to the complainant and she was also given the option to have another opinion before giving consent for the surgery. She gave her consent after understanding the full implication and a perusal of the consent signed by her will clearly show that she was also given the option of second opinion before deciding on surgery. She had also a medical and cardiology consultation and examination and relevant pre-operative investigations before finding her fit for surgery.
10. Surgery was done on her under all aseptic precautions and with utmost care and caution. Laparoscopic cholecystectomy was done by the second opposite party and right URS with DJ Stenting done by Dr. Joseph Manak on 24.10.2009. During surgery, gall bladder was found to be densely adherent stone in the right ureter was fragmental and removed and stent was inserted. She was advised removal of stent after two weeks. Post operative period was uneventful and complainant was discharged on 28.10.2009 with advice to come for review after one week. She came for follow up on 04.11.2009. She had mild pain and was given anti-spasmodic medicines and was advised urology consultation which she did not follow. Meanwhile, the biopsy report of the gall bladder came as chronic calculus cholecystitis which justified the removal of the gall bladder. She was asked to see the 2nd opposite party after one week. The complainant was again reviewed on 11.10.2009 and she was better and she was again advised urology consultation which she failed to follow. She consulted Dr. Joseph Manak on 16.12.2009 and the stent was removed on that day. The next visit of the complainant was on 26.04.2010, more than five months after her visit to the 2nd opposite party. She was complaining of pain abdomen and the examination did not reveal anything. She was advised to have urology consultation as well as orthopedic consultation but she did not follow the advice. Thereafter the complainant was lost to follow up.
11. Even though complainant was referred for surgery by Dr. Abraham Mathew, surgery was not done immediately. She was given conservative management initially. Even when she came on 19.10.2009 surgery was not done. Before advising her surgery, either specialists were consulted and all necessary investigations were done. Surgery on the complainant was done only on 24.10.2009 exactly two weeks after her first visit to the 2nd opposite party. Complainant has purposely omitted the date of her first visit to the 2nd opposite party so as to make such a false allegation. The allegation in the complaint that 2nd opposite party promised her relief of pain after the surgery is false and baseless and hence they denied. The allegation that the operation and post operational period was horrifying and painful for her both mentally and physically is false and baseless and hence denied. If it was so, she could not have been discharged 4 days after surgery. The complainant had mild pain only when she came for review on 04.11.2009 which settled with antispasmodics and she had no problem on 11.11.2009 when she came for review.
12. The 2nd opposite party never got angry or irritated at the complainant. When the complainant had mild pain on 04.11.2009 she was given antispasmodic after proper examination and she was symptom free when she came for review on 11.11.2009. She had came to the 1st opposite party’s hospital on 16.12.2009 for stent removal and at that time also she did not complain of any pain. The next time she came to the 1st opposite party’s hospital was only on 26.04.2010 with complaints of pain. If the complainant was having the same pain after operation, she would not have waited so long for coming to the 2nd opposite party with the same complaint. There was nothing in the act of the 2nd opposite party which was unprofessional and immature and oriented to victimize an ordinary patient who does not know anything about medical nuances and implications. Pain is something which is subjective and which cannot be proved or disproved and even if there is a false claim regarding pain which is made for monetary purpose or having psychological origin, it cannot be disproved. Further complainant admitted that she was very weak psychically.
13. The opposite parties had given the correct treatment to the complainant. She was referred by another surgeon of repute to the 2nd opposite party. 2nd opposite party treated the complainant according to the well laid down guidelines in standard text books of surgery. If it was the intention of the 2nd opposite party to make money for himself and the hospital, he could have advised surgery in the first visit itself instead of trying for conservative management. Even before deciding on surgery, he had obtained opinion from other experts and the surgery done was successful and the biopsy report had justified the surgery done on the complainant. Medical science has not reached a stage where the adoption of a particular treatment, medical or surgical would produce a definite positive result in all cases of illness in which case there will not be any death at all. The outcome of the treatment would greatly depend on a variety of factors such as the severity of the condition treated, co-existence of other diseases, immunological status of the individual, limitation of the treatment involved, sensitivity of the individual to the drugs, resistance of the organisms to the drugs administered patient compliance etc. Many of which are not under the control of the treating doctors or the hospitals. The settled position is that if whole treating a patient the doctor in charge adopts the conventional method and manner of treatment as prescribed by texts and followed by specialists of the line during the treatment even if the patient does not respond and death takes place the doctor attending the patient cannot be accused of any negligence or deficiency in service. Moreover, opposite parties cited various citations in their favour and canvassed for the dismissal of the complaint with their cost.
14. Addl. 3rd opposite party entered appearance and filed version stating that complaint is not maintainable either in law or on facts. According to them, insurance policy issued to 1st opposite party for a period from 06.10.2009 to 05.10.2010. But the opposite party denies the liability to indemnify the insured due to violation of policy conditions.
15. According to them, complainant was having a history of pain abdomen of 7 days duration. Her leg was already in plaster cast due to fracture. She was referred to 2nd opposite party for cholecystectomy as she was having stones in the gall bladder. She had brought an ultrasound report along with her. The 2nd opposite party examined the complainant and the findings were suggestive of cholelithiasis resulting in Cholecystits. She was started on conservative management with antibiotics. This is the line of management advised as experience shows that in more than 50% of the cases, the symptom of acute cholecystits subsides with conservative measures.
16. Complainant got admitted on 21.10.2009. She was seen by urologist, Dr. Joseph Manak. He suggested a IVU. Surgery was done on her under all precaution and with utmost care and caution. Post operative period was uneventful and complainant was discharged on 28.10.2009 with advice to come for review after one week. She was again reviewed on 11.10.2009 and she was better and she was again advised urology consultation which she failed to follow. She connected Dr. Joseph Manak on 16.12.2009 and the stent was removed on that day. According to them pain is subjective and which cannot be proved or disproved and even if there is a false claim regarding pain which is made for monetary purpose or having psychological origin, it cannot be disproved. Moreover complainant admitted that she was very weak psychically. The treatments given were proper. Hence 3rd opposite party canvassed for the dismissal of the complaint.
17. From the above pleadings, following points are raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the relief sought for in the complaint is allowable?
(3) Reliefs & Costs?
18. Evidence of the complaint consists of the oral depositions of PWs. 1 and 2 and DW1 and marked Exts. A1 to A12 and B1 to B3. After the closure of evidence, both parties were heard.
19. Point Nos. 1 to 3:- In order to prove the complainant’s case, complainant filed proof affidavit along with certain documents. She was examined as PW1 and the documents produced were marked as Exts. A1 to A12. Ext. A1 is the Sonography report of abdomen and pelvis dated 01.10.2009 from SGM Scans. Ext. A2 is the Ultrasonography report of the abdomen from Mar Gregorios Memorial Muthoot Medical Centre dated 19.10.2009. Ext. A3 is the Report dated 24.10.2009 from Muthoot Medical Centre, Kozhencherry. Ext.A4 is the Colour Doppler Echo Cardiographic report dated 24.10.2009 from Department of Cardiology, Muthoot Medical Centre. Ext. A5 is the Pathology report from Muthoot Laboratories and Research Centre, Thiruvananthapuram. Ext.A6 is the Laproscopy Report from Muthoot Medical Centre, Kozhencherry. Ext. A7 is the Discharge Summary dated 28.10.2009 from Muthoot Medical Centre, Kozhencherry. Ext. A8 is the Inpatient Bill amount of ` 51,147 dated 28.10.2009 issued by Muthoor Medical Centre, Kozhencherry. Ext.A9 is the Sonography report of abdomen and pelvis dated 05.02.2010 from SGM Scans. A10 is the Computed Tomography Report of abdomen and pelvis dated 06.12.2010.A11 is the copy of legal notice dated 23.07.2010 sent to first opposite party. A12 is the copy of outpatient medical record dated 24.08.2011 issued from Sanjivani Multi Speciality Hospital.
20. In order to prove the opposite parties’ contention, 2nd opposite party filed proof affidavit along with certain documents. He was examined as DW1 and the documents produced were marked as Exts. B1 to B3. Ext. B1 is the outpatient medical record No.427110 of Darly Mathew. Ext. B2 is the inpatient medical record No. 128049 of Darly Mathew. Ext. B3 is the reply notice dated 03.08.2010 sent by the first opposite party to the complainant’s counsel.
21. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record. Complainant’s case is that she has been ailing from abdomen pain and opposite parties diagnosed as cholelithiasis and done laparoscopic cholecystectomy with hasty without observing and studying. After the surgery, the same pain persists. Moreover, 2nd opposite party promised her that the operation would cure her pain but she is still suffering from the same pain. The treatment of operation prescribed and done by opposite parties are totally wrong. Hence this complaint.
22. Opposite parties’ contention is that complainant has been referred from St. Gregoriose Hospital, Parumala with a history of pain abdomen of 7 days duration. Opposite parties diagnoses by ultrasound examination and find that the complainant was having a gallistone disease with two mobile stones and also kidney stones. She was seen by Urologist Dr. Peter Manak also. He gave the opinion that complainant was having horse shoe kidney with stone in the right ureter. She was undergone laparoscopic cholecystectomy along with right URS after consultation with other doctors after getting consent of the complainant. During surgery, gall bladder was found to be densely adherent. Stone in the right ureter was fragmented and removed and stent was inserted. After that biopsy report of the gall bladder came as chronic calculus cholecystitis which justified the removal of the gall bladder. According to them, they had given the correct treatment to the complainant based on the guidelines in the standard text books of surgery.
23. On a perusal of Ext. A8, it is revealed that opposite parties accepted ` 51,147 as charges for complainant’s operation and treatment. But complainant’s complained is that the same pain persists even after the operation. Though pain is a subjective feeling, the fact and circumstances shows that complainant’s pain is true. Evidence on record does not revealed that there occur any defect in opposite parties’ surgery which is evident in PW2’s deposition as shows below: “lÀPn-I-£n-bpsS \ne-hn-epÅ thZ\ t\cs¯ \S-¯nb Hm¸-td-j-\p-ambn _Ô-ap-tm- F¶v F\n¡v ]d-bm³ Ign-bnÔ “ap¯qäv Bip-]-{Xn-bn \S-¯nb kÀPdn Bh-iy-a-Ãm-¯-Xm-bn-cp-¶p-sh¶v F\n¡v ]d-bm³ Ign-bnÔ. “Kidney stone remove sNbvXmepw hopw recur sN¿m³ km²y-X-bpv”.
24. Another contention of complainant is that opposite parties without observing, studying and without evaluation and laboratory evaluation took a hasty pre-conceived decision of surgery on her. On a perusal of record, it is revealed that opposite parties conducted CT scan and other laboratory findings. Complainant also admitted that she consulted Dr. Peter Manak, Urologist for further findings and opinion. It is evident in DW1’s deposition which is as follows: “operationþ\p ap¼v Dr. Peter Manak DÄs¸sS 2 tUmIvSÀamÀ Fs¶ ]cn-tim-[n-¨n-cp-¶p. Ah-cpsS A`n-{]mb {]Imcw cm-aXpw Hcp ultra sound examination FSp-¯p. scanning- gall bladderþ move -sN-¿p¶ stoneþ-Ifpw DÅ-Xmbn Ip. XpSÀ¶v aäp Nne tUmIvSÀamÀ Fs¶ ]cn-tim-[n-¨p. B ]cn-tim-[-\-bn F\n¡v horse shoe kidney with stone in the right ureter Ds¶v I-Xnsâ ASn-kvYm-\-¯n uretercuroscopy F¶ kÀPdn \nÀt±-in-¡p-Ibpw sNbvXp. CXn-sâ-sbÃmw ASn-Øm-\-¯n laproscopy cholecystectomy \S-¯-W-s\¶v \nÀt±in-¨p. \nÀt±iw AwKo-I-cn¨v consent letter Rm³ \ÂIn. XpSÀ¶v 24.10.2009-þ cmw FXr-I-£nbpw Dr. Joseph ManakþDw tNÀ¶v kÀPdn \S¯n”.
25. From the overall facts and circumstances and the available evidence on record, we cannot find any imperfection or deficiency on the part of opposite parties. Moreover, complainant failed to adduce any cogent evidence to substantiate that there is absence of due care and caution or imperfection on opposite parties’ part. Therefore, we are not inclined to allow this complaint and it is liable to be dismissed.
26. In the result, this complaint is dismissed. No cost.
Declared in the Open Forum on this the 28th day of July, 2012.
(Sd/-)
N. Premkumar,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Darly Mathew.
PW2 : Dr. V.K. Rajan.
Exhibits marked on the side of the complainant:
A1 : Sonography report of abdomen and pelvis dated
01.10.2009 from SGM Scans.
A2 : Ultrasonography report of the abdomen from Mar
Gregorios Memorial Muthoot Medical Centre dated
19.10.2009.
A3 : Report dated 24.10.2009 from Muthoot Medical Centre,
Kozhencherry.
A4 : Colour Doppler Echo Cardiographic report dated
24.10.2009 from Department of Cardiology, Muthoot
Medical Centre.
A5 : Pathology report from Muthoot Laboratories and
Research Centre, Thiruvananthapuram.
A6 : Laproscopy Report from Muthoot Medical Centre,
Kozhencherry.
A7 : Discharge Summary dated 28.10.2009 from Muthoot
Medical Centre, Kozhencherry.
A8 : Inpatient bill amount of ` 51,147 dated 28.10.2009
issued by Muthoor Medical Centre, Kozhencherry.
A9 : Sonography report of abdomen and pelvis dated
05.02.2010 from SGM Scans.
A10 : Computed Tomography Report of abdomen and pelvis
dated 06.12.2010.
A11 : Copy of legal notice dated 23.07.2010 sent to first
opposite party.
A12 : Copy of outpatient medical record dated 24.08.2011
issued from Sanjivani Multi Speciality Hospital.
Witness examined on the side of the opposite parties:
DW1 : Dr. Cheriyan Mathew.
Exhibits marked on the side of the opposite parties:
B1 : Outpatient medical record No.427110 of Darly Mathew. B2 : Inpatient medical record No. 128049 of Darly Mathew. B3 : Reply notice dated 03.08.2010 sent by the first
opposite party to the complainant’s counsel.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Darly Mathew, Valuparampil House, Parumala.P.O.,
Thiruvalla.
(2) Muthoot Medical Centre, Kozhencherry,
Pin – 689 641.
(3) Dr. Cherian Mathew MS, Consultant, General &
Laproscopic Surgeon, Muthoot Medical Centre,
Kozhencherry – 689 641.
(4) The Oriental Insurance Co. Ltd., Plakkat Building,
Market Junction, Thripunithura,
Cochin, Kerala – 682 301.
(5) The Stock File.
