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Advocate Ashok A. More for the Complainant
Advocate Suresh R. Firodiya for the Opponent Nos. 1 and 2
Advocate S.A.Maheshwari for the Opponent No.3
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 17th December 2013
This complaint is filed by unfortunate lady who has suffered negligence at the hands of expert doctor. Brief facts are as follows-
[1] Complainant is a housewife and residing at Aurangabad alongwith her husband and family members. Her husband is also medical practitioner at Aurangabad. Opponent No.1 is specialized hospital in laparoscopy surgery. Opponent No.2 is a principal surgeon of the said hospital and Opponent No.3 is the insurance company.
[2] Complainant was admitted in the Opponent No.1 institute on 8/4/2007 for laparoscopy as per the advice of Opponent No.2. Medicines were given in view of the laparoscopy which was scheduled on 9/4/2007 as per the prescription given by the Opponent No.2 who has performed laparoscopic hysterectomy on 9/4/2007 at about 3.00 p.m. Complainant was under the influence of anesthesia for 3-4 hours after the said surgery and thereafter she had started to make complaints about severe abdominal pains. Complainant informed to her husband and relatives about the abdominal pains. Then Opponent No.2 narrated that these are the normal consequences after the surgery. He did not take efforts to attend the complainant. He did not send any colleague for attending the complainant and she bears the pains continuously. The complainant had informed on the next day that she is suffering from pains and did not pass urine for 10-12 hours and there were acute abdominal pains. At that time pain killer injection was given to her and she was advised to have tea and biscuits and thereafter she will be discharged. After half an hour she was feeling uneasy and could not breathe properly. Hence, the husband and relatives of complainant immediately approached the Opponent No.2 and informed about the situation. On the same day, Opponent No.2 had suggested for catherisation and he informed that the urine output is decreased. Thereafter also the urine output was very low hence she was given injection Lasix. Eventhough the condition of the patient was serious; Opponent No.2 lightly treated the complainant. Thereafter Opponent No.2 has inserted tube through nose of the complainant for removing some fluid from the stomach and there was little improvement in the condition of the complainant. However, she was again suffering from severe abdominal pains and condition of the complainant became serious. Thereafter she was suffering from loose motions for 3-4 days which were followed by vomiting and abdominal distension. Opponent No.2 advised to take discharge. Thereafter, Opponent No.1 without taking care left for foreign tour. Then complainant was discharged in harried manner and admitted in Poona Hospital for further treatment. CT Scan was taken in Poona Hospital. At that time, the doctor and relatives were deeply shocked to observe that there was accumulation of fluid and puss in the abdominal cavity to the tune of 1.5 to 2 ltrs. Then complainant was again taken back to the Opponent No.1 premises and it was informed to the relatives of the complainant that there was puss formation in the stomach of the complainant and further told to take patient to another hospital. It is the case of the complainant that thereafter she was treated and operated in Poona Hospital. Complainant was serious in Poona Hospital. The formation of puss was due to total negligence and carelessness during the laparoscopy conducted by the Opponent No.2 as there was damage to the post wall of the bladder and due to perforation there was leakage of urine from bladder in the abdominal cavity. Then the experts from Poona Hospital were called for and the bladder rent was closed by taking 38 stitches. She was on ventilator after the operation for 72 hrs. and was in ICU for 16 days at Poona Hospital.
[3] Complainant came to the Opponent No.1 to avoid operation of five stitches due to medical advancements available with the Opponents showing that only one stitch would be required for the said operation and complainant could get discharge in single day. Complainant got discharge form Poona Hospital on 8/5/2007 and reached to Aurangabad on 9/5/2007. Thereafter for 8-10 days, she had lost control on passing urine. Thereafter she took various treatment at Aurangabad. Thus life of the complainant became miserable and she is unable to do routine house work which she was performing prior to the operation.
[4] Complainant is under going treatment till filing of the present complaint. She had claimed compensation on the ground of expenses incurred for medical treatment, miscellaneous expenses and for mental agony and physical sufferings. Total claim of the complainant is Rs.20,00,000/-
[5] Opponent No.3 is the insurance company with whom the Opponent Nos. 1 and 2 insured the medical negligence. Complainant has claimed compensation from Opponent Nos. 1 to 3 jointly and severally.
[6] Opponent Nos. 1 and 2 resisted the complaint by filing written version. They have denied the contents of complaint in toto. It is flatly denied that there was medical negligence and deficiency in service on the part of the Opponent Nos. 1 and 2. According to the Opponent Nos. 1 and 2 the complaint is false, frivolous and malicious. Opponent No.2 has completed MBBS in Otolaryngology, gynecology and general surgery and also completed MS from Pune University. He has also credited with three yers rigorous training in onco-surgery in Tata Cancer Institute, Mumbai. He is well known and an accomplished surgeon for otolaryngology, gynecology and general surgery by laparoscopy. He has presented number of papers in India and abroad including Laparoscopic Anterior Exenteration, published in gynecologic oncology, 2006, a novel technique of total laparoscopic hysterectomy. The allegations about medical negligence which were levelled against the Opponent No.2 are flatly denied. Husband of the complainant is a medical practitioner and had profuse knowledge about he condition of the complainant. It is contended that, Opponent No.2 after discussion with the husband of the complainant recommended laparoscopic hysterectomy of the complainant. The method, manner and likely complications were explained by drawing sketches on rough papers to the complainant and her husband by the Opponent No.2. Thereafter complainant and her husband twice executed consent dated 8/4/2007 for laparoscopic hysterectomy. Thereafter on 9/4/2007 Opponent No.2 carried laparoscopic hysterectomy of the complainant in the hospital of the Opponent No.1. This consent pertains not only to laparoscopic hysterectomy but also to the complications which may arise therefrom. Opponent Nos. 1 and 2 denied that there was negligence in post operative care. It is also denied that severe abdominal pains were not attended to by the opponents. It is contended that such pains were explained to the complainant and her husband prior to the operation. The treatment given by the Opponent Nos. 1 and 2 was prompt and without delay and latches, analgesics were administered to the complainant to reduce pains and sufferings, within medically permissible limits with advice to bear some pains. It is also denied that Opponent No.2 take lightly about the treatment of the complainant. It is also denied that Opponent Nos. 1 and 2 advised discharge hurriedly and they had shown irresponsibility. According to them, Opponent No.2 had make arrangement to attend the complainant while he left for foreign tour. It is further contended that prior to going abroad, Opponent No.2 had arranged attendance of the complainant through Dr. Geetanjali Agarwal, well qualified and experienced surgeon to take care of the complainant during absence of Opponent No.2. The discomfort of the complainant is a known post operative complication including accumulation of puss and complainant was recommended. Since the said facility was available nearest at Poona Hospital, complainant was advised to be taken to Poona Hospital only for CT Scan. It is admitted by the Opponent Nos. 1 and 2 that CT scan showed accumulation of puss in peritoneal cavity. But it is submitted that, it is post operative complication which may arise after surgery. It is denied that said formation of puss was any way due to negligence or failure in duty on the part of the Opponents to take care. It is also contended that the patient was not advised to transfer to Poona Hospital. The decision of shifting to Poona Hospital was taken by the relatives of the complainant. It is denied that complainant was informed that immediate decision is required to be taken, otherwise the puss formed in the abdomen would act as poison leading to unforeseen situation and complications beyond any control. Since the husband of the complainant himself is a medical practitioner, the consequences and complications thus arising were not unknown to him or the complainant. It is also denied that the documents as regards discharge at her own risks were prepared hurriedly. The allegations levelled against the Opponent Nos. 1 and 2 are imaginary and baseless. It is denied that Dr. Sunita Tandulwadikar opined that the complications arising post laparoscopic operation were the result of negligence and carelessness and failure to attend the complainant on time for abdominal pains. Dr. Sunita Tandulwadikar was not present during the operation Even if any such opinion is found to have been given by said doctor, the same can only be a guess work, without containing any fibre of truth. It is further denied that the bladder perforation of the complainant resulting into leakage of urine in the abdominal cavity was due to the alleged negligence on the part of the Opponent Nos. 1 and 2. They have denied that the later surgery of 38 stitches was result of negligence or deficiency in service on the part of the Opponents. Complainant has claimed Rs.5,00,000/- while sending notice but raised the claim upto Rs.20,00,000/- while lodging the complaint. This is suggesting that the complaint is false. Opponent Nos. 1 and 2 have prayed for dismissal of the complaint.
[7] Opponent No.3 Insurance Company adopted the written version of Opponent Nos. 1 and 2. According to the Insurance Company as there is no negligence, the Opponent No.3 is not liable to pay compensation. But it is admitted by the Opponent No.3 that the Hospital i.e. the Opponent No.1 is insured under the insurance policy.
[8] After considering the pleadings of both parties, affidavits, scrutinizing the documentary evidence, written argument and hearing oral argument of both counsel, following points arise for our determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether Opponents have caused deficiency in service while giving medical treatment to the complainant ? | In the affirmative |
2 | Whether the complainant is entitled for compensation ? If yes, what would be the quantum ? | As per final order |
Reasons-
As to the Point Nos. 1 and 2-
[9] On careful perusal of voluminous documentary evidence which is adduced on behalf of both parties and affidavits as well as opinion, it is crystal clear that the Opponents have not disputed that the complainant was admitted in the hospital i.e the Opponent No.1 and treated by the Opponent No.2. It is also not in much dispute that while performing laparoscopic hysterectomy the complainant had sustained injury to urinary bladder and the complications were developed. It is not in much dispute that the hospital was insured with the Opponent No.3 at the time of operation of complainant and there is no breach of conditions at the hands of Opponent Nos. 1 and 2. The only material dispute between the parties is that whether the injury which has been sustained to the urinary bladder of complainant during the court of said operation is negligent act or otherwise ? It is the case of complainant that the husband of the complainant is a medical practitioner and he is doing his practice at Aurangabad. Eventhough adequate medical facilities are available at Aurangabad, he has chosen for laparoscopic hysterectomy of complainant at the hands of expert and with modern technique. Hence, he came to Pune for performing the said operation. But when the said operation was performed, the complications were developed as the injury has been sustained to the urinary bladder. During the course of investigation, it has been found that, there was accumulation of fluid and puss in the abdominal cavity to the tune of 1.5 ltrs. due to the said injury and condition of complainant became serious. She had required to obtain CT Scan and subsequently she was shifted to Poona Hospital for further treatment. It has been brought on record and undisputed that the Opponent No.2 had left India during the course of treatment of complainant in his hospital. Opponent No.2 has produced voluminous documents in order to show that he is expert in the filed of Gynecology and he had read various papers at various conferences and attended conferences abroad. He has produced text on record to show that the chances of injury to urinary bladder during the course of laparoscopic hysterectomy are meager and he has also produced text as well as opinion of other Gynecologists showing that even at the hands of expert, such injury is possible and these are known complication during the course of said operation. It is significant to note that the complainant came to Pune from Aurangabad for taking treatment at the hands of expert with modern technique in order to avoid complications. But she has not received better medical treatment only but she was treated negligently when she was admitted in the hospital and ultimately she had required to shift to another hospital for further treatment. In ordinary course, if the patient is getting proper treatment, it will not shift from one hospital to another. It has also come on record that Opponent No.2 left the patient in serious condition and attended foreign tour. This fact itself is showing that there is negligence on the part of the Opponents. It further reveals from the record that she had required to undergo for surgery twice after taking treatment from the hospital of Opponent Nos. 1 and 2. This also indicates that there is negligence on the part of the Opponent Nos. 1 and 2. The learned Advocate for the complainant argued before the Forum that the Opponents themselves have filed application for obtaining expert’s opinion and the said opinion is called from Sassoon Hospital and five doctors of Sassoon Hospital have opined that on careful study of the material which was placed before them, they come to the conclusion that there is deficiency in service at the hands of the Opponents. Moreover, it has been observed in the recent ruling by the Hon’ble Supreme Court, between V. Kishan Rao vs. Nikhil Super Speciality Hospital and another reported in (2010) 5 Supreme Court Cases 513 that, it is not necessary to call for the expert opinion in all cases of medical negligence and in certain cases the medical negligence can be inferred from the facts themselves.
[10] In the present proceeding it reveals that due to the injury to urinary bladder during the course of the operation, complainant had suffered a lot. She became handicapped throughout her remaining life and undergone pains and agony and the reason is that the injury which has been sustained to her. In the opinion of this Forum, causing of injury to the urinary bladder during the course of laparoscopic hysterectomy itself is medical negligence. Eventhough the text which is submitted by the Opponents is showing that the percentage of such injury is very less and there are very remote chances of such injury, that does not absolve expert doctor from the responsibility. As it reveals from the record that due to the said injury complainant had suffered a lot. Eventhough it is assumed that Opponent No.2 took precaution while giving treatment to the complainant the negligence which resulted in sufferings of complainant can be termed as a civil wrong. Eventhough it is termed as Medical accident instead of medical negligence still complainant is entitled for compensation as the law regarding compensation is originating from Law of tort and as per the Maxim Ubi Jus ibi remedium i.e. where there is wrong there is remedy. Complainant has rightly availed remedy under Consumer Protection Act, 1986.
[11] The complainant has claimed compensation of Rs.20,00,000/- for deficiency in service and other grounds. The said claim is bifurcated in various factors such as bill of medical treatment, miscellaneous expenses, medicines, expenses incurred for surgery. On the ground of expenses for medical treatment and medicines the complainant is entitled for compensation of Rs.3,50,000/-. She is also entitled for the compensation of Rs.3,50,000/- in addition for the mental agony and harassment as well as physical sufferings and for hardship as she had suffered for a long period and became handicapped. Complainant is further entitled for compensation of Rs.1,00,000/- for traveling expenses as well as for cost of litigation and inconvenience.
[12] As the Insurance has not pleaded that there is any breach of conditions of policy and there is no dispute as regards terms and conditions of insurance policy, this Forum is of the opinion that the Insurance Company shall indemnify the award which is passed against Opponent Nos. 1 and 2. In the result, it is held that, Opponent Nos. 1 to 3 are jointly and severally responsible to pay compensation to the complainant.
[13] In the light of the above discussion, this Forum answer the points accordingly and pass following order –
:- ORDER :-
1. Complaint is partly allowed.
2. It is hereby declared that Opponents have caused deficiency in service by showing medical negligence during the course of medical treatment to the complainant.
3. Opponent Nos. 1 to 3 are jointly and severally directed to pay Rs.8,00,000/- [Rupees Eight Lakhs only) to the complainant within six weeks from the date of receipt of copy of order.
4. If the amount is not paid or deposited within the stipulated period, it shall carry interest @ 9% p.a. from the date of filing of complaint till its realization.
5. Both parties are directed to collect the sets which are provided for the Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 18/12/2013
