IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 30th day of March, 2021
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
C C No. 135/2016 (filed on 28/04/2016)
Petitioner : Mrs. Neema Joy,
Thenadikulam (H),
Arunapuram P.O.
Kottayam dist.
(Adv. V.R. Rajesh)
Vs.
Opposite Parties : 1) M/s. Upasana Hospital,
A partnership firm represented
By its Managing Partner
Dr. Deepa G. Upasana Hospital,
P.P. Road, Pala,
Kottayam Dist. Pin – 686575.
2) Dr. Chitra G. (Partner)
Upasana Hospital,
P.P. Road, Pala,
Kottayam Dist.
Pin – 686575.
3) Mrs. Geetha (Partner)
Upasana Hospital,
P.P. Road, Pala,
Kottayam Dist.
Pin – 686575.
(For op1 to3, Adv. Thomas P. Makil,
Adv. Bobby John and Adv. Asha Antony)
O R D E R
Smt. Bindhu R, Member
The complaint filed under Section 12 of the Consumer Protection Act, 1986.
The case is as follows.
The complainant approached the opposite party with lower abdominal pain and done an ultrasound scan for abdomen at KISCO diagnostic centre Pala in 2015. In the ultrasound test a large multiseptated left adnexal cyst (with a size of 10.7x7.1cm) was found. A CA-125 test was suggested and done at Dianova lab on 08/01/2016. As per the result of the said test, the opposite party suggested the complainant to undergo a laparoscopic (L) ovarian cystectomy at their hospital. Accordingly it was done at the opposite party hospital on 09/01/2016 under general Anastasia. A piece of the cyst measuring 4cm (of left ovary) was given by the opposite party to DDRC Kottayam for biopsy test. Mucin cystic tumour borderline was diagnosed in the biopsy test. A laprotomy was advised by the opposite party to be done after 6 months. On 13/01/2016 after the left ovarian cystectomy the complainant got discharged from the opposite party hospital. But she started having severe abdominal pain and not in a position to urinate for 2-3 days. Though she approached the opposite party, they did not solve the problem. So the complainant approached Caritas Hospital on 18/01/2016. An abdominal scan was done on the same day in which mild to moderate free fluid was found. The same was not found in the ultrasound test done at KISCO. On 19/01/2016 an MRI was done at Jeevan MRI Centre, Kottayam in which the left cyst with a size of 7.8x3.7 cm and mild to moderate free fluid was seen. The complainant was advised to undergo a surgery for the removal of both ovary and uterus. The left ovary with cyst was not yet completely removed and because of the flow of free fluid, right ovary and the uterus got damaged. So it also had to be operated and removed. Accordingly surgery was done and the left ovary with cyst, right ovary and uterus were removed. The opposite parties had not removed the left ovary cyst completely and after taking a portion of it for biopsy causing free flow of fluid, which aggravated the situation and resulted in the removal of both ovary and uterus of the complainant. Complainant was only 41 year old and was a healthy woman who was planning to have one girl child but due to the negligent act of the opposite parties the complainant and her family had to undergo severe mental strain as they had to give up their dream of a girl child. A lawyers notice was issued by the complainant and the opposite parties replied raising false contentions. So the complaint is filed for repayment of all the expenses incurred in the treatment and for compensation.
Up on notice, the opposite parties appeared and filed version.
The opposite parties point out that the opposite party 1 and 2 are not partners or owners of Upasana hospital. Admittedly the complainant approached Upasana hospital on 29/12/2015 with a complaint of lower abdominal pain which according to the complainant was persisting for 2 weeks. Dr. K.K. Vijayakumari, Gynaecologists examined the complainant thoroughly and advised certain symptomatic treatment and for a review. Accordingly on 02-01-2016 the patient was again examined and was advised to undergo an ultra sound scan of the abdomen. The scan was done on 07-01-2016. On the next day, the patient approached the Gynaecologist with scan report, thus a possible benign cyst on the left ovary was detected. Accordingly she was advised laparoscopic left ovarian cystectomy on 09-01-2016. The said surgery was performed by 1st opposite party, assisted by the 2nd opposite party and cyst was removed. The cyst was shown to the patient’s husband and was sent for histopathological examination to the lab on 09-01-16 itself. After discharge on 16-01-2016, the patient again approached the opposite party with complaint of constipation, for which Dr. K.K. Vijayakumari had prescribed certain laxative medicines. Therefore the contention that the complainant had approached the opposite party with complaints of abdominal pain and urinary difficulty is false. Thereafter, the report of histopathological examination diagnosing “Mucin cyst tumour borderline” was received. The concerned gynaecologist Dr.K.K. Vijayakumari and the other doctors involved in the surgery took multiple advice from various Oncologists, who unanimously advised that conducting a Staging Laparotomy for enabling a thorough evaluation of malignancy if any, the extent of it, and the removal of the affected organs if any. Accordingly the patient was advised to undergo a staging laparotomy as soon as possible. This was elaborately explained to the patient and her husband on 19-01-2016. Therefore the contention that the opposite party had advised a six-month window to perform the said surgery is false. On the contrary the complainant was advised to undergo a Staging Laparotomy as early as possible. It was explained to the complainant and her husband that Upasana hospital had all the necessary infrastructure and expert medical practitioners and could perform the said surgery. However no further communication was received from the complainant except the afore mentioned condition of constipation, the complainant had not sought the assistance of the opposite parties. The cyst, which was found by the opposite party on the left ovary of the patient was multi-loculated cyst which was initially diagnosed as a benign one. In almost all cases doctors strive to peel out each locule, though it may not be virtually possible. In multi-loculated type of ovarian cysts, if all locules are to be removed, the entire ovary would have to be removed. In the instant case, owing the age of patient and her desire to conceive again, the opposite parties preserved the ovary after they removed as much locules as they could. This was also due to the reason that the cyst wall was densely adherent to the ovary. As per the histopathological examination report there was a border line malignancy which necessitated a Staging Laparotomy which would invariably result in the removal of the ovary and uterus. The presence of free fluid as per the MRI scan report dtd.19-01-16 was infact the fluid used for Peritoneal Lavage; the fluid used for cleaning and sanitizing the peritoneal cavity after cystecotmy. The presence of this fluid along with some locules would have enhanced and given an impression of a cyst in the MRI scan dated 19-01-16. This is further enhanced by the fact that a potentially malignant cyst would have tendency to recollect fluid faster. The removal of ovaries and uterus was a part of staging laparotomy and not because of any omissions from the side of opposite parties. Even the advice for the staging lapartomy was rendered initially by the opposite party. The complainant had subjected herself to a Laparotomy, though elsewhere in itself is a testimony of expertise, diligence, care and caution. It therefore rules out any deficiency in service on their part. The complainant is a mother having 3 children. The reason for removal of the ovaries and uterus was on account of procedure to prevent the spread of malignancy. It was not owing to any imperfection in the cystecotmy performed earlier by the opposite parties. It is an admitted fact in medical science that the ovaries and uterus will be removed completely in such Staging Laparotomy, so as to prevent the spread of malignancy. The date of the legal notice and the reply to it, stated in the complaint was false. Despite, being aware that the opposite party and its doctors had executed the procedure well, diagnosed the Lab report correctly, sought external medical opinion also admirably, and had rendered the correct medical advice to the Complainant, she had wilfully raised such false allegations against the Opposite Party with a sheer motive for defaming the opposite party and its doctors and for reaping unjust gains.
The evidence part consists of the deposition of the complainant as PW1&
PW2 and marked Exhibits A1 to A12 and Exhibit X1. The opposite parties examined DW1to DW3 and marked Exhibit B1.
On a detailed perusal of the above complaint version and the documents we would like to frame the following issues:
- Whether the complainant has succeeded to establish her case of alleged negligence on the part of the opposite parties?
- Whether the complainant is entitled for the compensation claimed?
Issue no 1
The complainant approached the opposite party with an abdominal pain and on examination vide scanning and other subsequent methods, the opposite parties conducted an ovarian cystectomy on her. According to the hystopathological report, seeing a malignancy, she was again advised to do staging laporotomy. The complainant alleges negligence on the part of the opposite parties for not removing the left ovarian cyst full in laporoscopic cystectomy and for not giving proper advice.
The complainant herself deposed before the commission that the opposite party has done laporoscopic cystectomy and according to the result adviced for a staging laporotomy and she had undergone the same surgery in another hospital.
The complainant alleges that the opposite parties had advised to do the staging laporotomy after 6 months but as Carithas hospital advised for an immediate laporotomy, she could do it.
The next allegation is that the opposite parties when doing the laporoscopic cystectomy, ought to have preferred a biopsy instead of cystectomy. Not only that, the opposite parties had removed only a portion of the left ovarian cyst instead of removing the left ovarian cyst in whole. This act of the opposite parties resulted in the removal of the ovary in full and the uterus of the complainant putting her into great mental agony.
The counsel for the complainant argued that the opposite parties could have opted for a biopsy instead of doing cystectomy. The opposite parties should have waited for the histopathological report before doing cystectomy.
He further put forward the argument that as the cyst was identified as a multiseptated one, it could have been removed completely. As the opposite parties removed the cyst negligently, the complainant had to undergo a complete hysterectomy including the removal of right ovary. It is because, in the cystectomy, the cyst was not fully removed and the uterus got damaged and the ovary was found oozing. As per the deposition of Dw3, it is quite possible to conceive even with one ovary. So if the cyst being malignant and a multi loculated one, the ovary itself should have been removed. The opposite parties have stated in their version that they had informed the husband of the complainant about this but only upon his request, they retained a portion of the ovary which caused a subsequent hysterectomy depriving the complainant of her dream of having a girl child. Though the opposite parties contended that there is no difference between multiseptated cyst and multi loculated cyst, Dw2 has stated that multiseptated cyst can be solid also. So the learned counsel for the complainant concludes this argument as the evidence of both sides would show that in multi loculated cysts, the right course is to remove the ovary itself and in multiseptated cyst, the entire cyst can be removed. His further argument is on verification of the size of the cyst alleged to have removed is 10.7x7.1 cm in Ext.A1, in A5 it is 4 cm. In A7 it is 7x7, A9-it is 7.8x3.7 and in X1 it is 7x7. From this it is evident that in the cystectomy only a small portion of the cyst was taken and the larger portion remained in the ovary itself. Also the opposite parties have not mentioned anywhere what was the size of the cyst? The learned counsel relies on the deposition of Dw2, that there is a possibility of oozing from the cyst if the entire cyst is not removed. The counsel further argues that the opposite parties have committed forgery by creating Ext.A4 discharge summary and discharge card portion in Ext.B1. The complainant got discharged on 13-01-2016. The case sheet produced by the opposite party would show that the time of discharge as 11.00AM. InA4 discharge summary it is mentioned that the complainant was advised to undergo staging laporotomy. The histopathological report is dated 14-01-2016 at 3.56 PM. Then how could the opposite parties advice the complainant to do a laporotomy on anticipation of malignancy after consulting with Oncologist. This raises suspicion about the genuineness of the opposite parties. Further there is marked difference in A3 discharge card and A4 discharge summary both of which were prepared on the same date ie. 13-01-2016. In Ext.A3 discharge card the advice is only for a review after 2 weeks and for taking certain medicines. In A4 discharge summary details of surgery and advice for the further treatment etc. are added. So this A4 is alleged to be prepared subsequently.
The counsel for the opposite parties also filed a detailed argument note. The counsel argued that the opposite parties after obtaining the histopathological report consulted with various Oncologists and on 19-01-2016 advised the patient and her husband that the patient had to undergo a staging Laporotomy as early as possible. But no further communication was received from the complainant. The counsel has put forward several renowned judgements in support of “what would tantamount to negligence”. Here as per the principle derived in Jacob Mathew Vs. State of Punjab the burden of proof is upon the complainant to prove the alleged negligence. Here the complainant has failed to prove her case with cogent evidence. Pw2, who was said to have advised the complainant on medical negligence while in her deposition, has denied the said statement. So the complainant has failed in establishing a prima facie case against the opposite parties. The Dw2 has categorically stated that on perusal of Ext.B1 and X1, the treatment history of two hospitals, no negligence was seen. Thus, the learned counsel for the opposite parties argued that the complainant has failed to establish her case for lack of cogent evidence and the complaint is liable to be dismissed.
Regarding the allegation of partial removal of the cyst, the opposite parties’ argument is that the subject cyst was a multi septated / multi loculated cyst on the left ovary and the cyst wall was internally adherent also. Dw1, the performing doctor has deposed that therefore the cyst could not be removed and as many locules as possible were removed so as to preserve the ovary. The counsel contends that Pw2 and Dw1 to 3, who are the doctors who examined have affirmed that the cyst was a multi septated/multi loculated cyst and in most cases cannot be removed. As the cyst was multi septated multi loculated cancerous cyst, it could not be removed completely. As the cyst was malignant, staging Laporotmy was the only solution and it was advised by the opposite party but the complainant did not turn up to them. Hence there is no deficiency of service.
Heard both counsels in detail. The complainant alleges negligence on the part of the opposite parties in conducting ovarian cystectomy which lead the complainant to hystectomy causing severe mental agony and stress to the complainant. The complainant had to undergo a laporotomy and hysterectomy only because of the negligent act of the opposite parties in not doing the cystectomy properly.
On a detailed examination of the evidence on record and the pleadings of the both parties, it is evident that the complainant underwent a loporoscopic cystectomy in the opposite party 1 hospital performed by opposite party 2 and 3. Here admittedly the left ovary of the complainant was not removed and the cyst also was not fully removed. According to the approved medical dictionaries an ovarian cystecomy means a surgery to remove a cyst from your ovary”. So it means a complete removal of the cyst from the ovary. Here the opposite parties also admit that they could not remove the cyst completely for the reason that it was a multiloculated multiseptated cyst. Another reason for the non removal is the request from the husband of the complainant that not to remove the ovary completely. Both these contentions seems baseless though the opposite parties have brought it out that a multiseptate cyst is difficult to be removed. In such cases the normal protocol is to remove the cyst ovary itself. But here the opposite parties did not care to remove the cyst fully which is evident from the size of the cyst. InExt.B1 on 03-01-2016 the size of the cyst is recorded as 10x11 cm at the time of cystectomy. But after the surgery on 19-01-16 in Ext.A9 it is recorded as 7.8x3.7 cm. It cannot be believed that in 10 days the removed cyst would gather this size. If complete cystectomy was done on the second time the cyst would not have been attained the size of 7.8x3.7 cm. This explains the allegation of the complainant that the opposite party had not done the cystectomy completely.
But the question to be answered is whether this partial cystectomy caused further complications? On exanimation of documents, depositions of witnesses and authoritative text books, we can see that the doctors of opposite party 1 hospital decided to conduct a laparoscopic cystectomy on the complainant as per the result of CA125 test as 9.54/ML recorded in A1. This result shows a normal condition with regard to the malignancy. So only to remove the cyst and for further examination the opposite parties conducted cystectomy and subsequently the hystopathological report Ext.A5, showed the result as “tumor borderline”. Here, the complainant raised another allegation that the opposite parties conducted cystectomy where as a biopsy was well enough for the examination. But in the case of ovarian complications, the usual accepted practice is not doing biopsy but cystectomy. It was done for removal of the cyst. Now, after the hystopatholocial report, the opposite party doctors advised the patient – complainant for conducting a staging laporotomy as there is borderline malignancy. A laprotomy as per the medical dictionaries “is an incision into the abdominal cavity for detailed diagnosis”. The complainants allege that no advice was given by the opposite parties at the time of discharge or later. They themselves approached Carithas hospital and conducted staging laprotomy. But on perusing Ext.A4 discharge summary and Ext.X1, we can see that the opposite parties have given advice to undergo a staging laprotomy after consulting with several Oncologists. If for the sake of argument, we take the allegation of forgery of A4, in A7, the discharge summary of Carithas hospital, in the presenting history it is clearly recorded as “Admitted with history of abdominal pain since about 4 weeks back. Ovarian cyst diagnosed by scan at Upasana Hospital 2 weeks back and laproscopic ovarian cystectomy done. HPR-Mucinous cyst adenoma with borderline malignancy. Hence advised laparotomy. Admitted for laparotomy. LMP-2/1/2016. Para 2, all FTND.LCB-13 years.” Carithas Hospital after considering the advice from the Opposite party hospital and after conducting necessary examinations decided to conduct staging laporotomy. The complainant’s allegation is that she has lost all her expectation of having a girl child only because of the negligence of the opposite parties. But we can evaluate from the evidence and medical authorities that if an ovarian cyst is diagnosed as malignant, considering the age of the patient and whether she had completed family, the accepted treatment is to remove the ovaries and uterus. Pw2 himself deposed that in X1 also it is recorded that opposite party 1 hospital advised for a staging laporotomy. Page 6 of X1 is none other than A7. So the allegation of the complainant that the opposite parties have not advised for further staging laporotomy is not sustainable.
The complainant has further failed to establish that the subsequent laporotomy and hystrectomy performed on the complainant was only because of the default in the cystectomy done by the opposite parties. The presence of mucus in the ovary is well explained by the dw2 in page 3&4 of her cross examination. Thus “A9 Â ]d-bp¶ fluid F{]-Imcw form sNbvX-XmWv? (Q) Remnants of peritonial wash sImpw oozing from the ovary sImpw form sN¿mw. Cu fluid Dw locules Dw IqSn enhance sNbvXn-«pÅ Hcp impression BImw A9 Â ]d-ªn-«pÅ cyst F¶Xv doctors sâ opinion AtÃ? (Q) AsX(A).
Dw3 also has deposed that lavage is used in almost in all cystectomy for cleaning peritoneal cavity and after the procedure, doctors usually put saline in the cavity. It is of high possibility for a cancerous cyst to ooze. In a staging laporotomy that would again be cleaned by the lavage. This saline may be seen as the fluid in subsequent scanning.
Moreover, the subsequent removal of ovaries and uterus of the complainant was not on account of the deficient partial cystectomy but as the cyst was seen malignant in theA5 histopathological report, the only treatment medical science would opt for a 41 year woman is to remove the ovaries and uterus in order to prevent further complications as per the evidence on record. The opposite party has produced an article on Recurrent Bilateral Mucinous Cystadenoma: laproscopic Ovarian Custectomy with review of literature ‘published in Indian journal of surgical oncology, June 2018’ in which it is stated as
“Mucinous tumours are usually being and mostly are multi locular; management in young patient is challenging, especially in the case of recurrence. Total hystectomy after completing her family size or reaching the age of 35 for fear of progression and poor compliance in our country”.
Here in the case on hand though the cyst was unilateral, for preventing recurrence and progression, the second hospital did total hysterectomy. In the portion of “The Oncologist” produced by the opposite parties it is stated as “Intraoperative Diagnosis and staging: To establish a complete FIGO staging, a combination of intra operative exploration of the entire abdominal cavity should be conducted with peritonial washings, omentoctomy, multiple peritonial biopsies and complete resection of all macroscopic suspected lesions. For resection of the primary tumour bilateral salpingo oopherctomy in combination with hysterectomy is recommended.
The staging surgery could be performed at the time of the surgical treatment of the ovarian tumour when fresh frozen section analysis has confirmed the diagnosis or borderline tumour or during a restaging surgery when the borderline tumour was diagnosed by permanent hystopathologial analysis after the first surgery”.
From the above discussed evidence and texts, it is made clear that the opposite parties even though did not conduct a full cystectomy, have properly advised the complainant with an express intention for performing staging laperotomy on her. In the deposition of Dw3 “Cystecomy sNbvX-Xn\v tijw peritonnial cavity bn lavage D]-tbm-Kn¨v clean sN¿p¶ {]Inb DÅ-Xm-Wv. Malignancy diagnose sNbvXp-I-gn-ªm cyst am{X-ambn remove sN¿n-Ã. Uterus, tube, ovaries, omentum F¶n-h-sbÃmw remove sN¿pw. Cu tIknse treatment history ]cn-tim-[n-¨-Xn \n¶v Fhn-sS-sb-¦nepw Hcp hogvN h¶-Xmbn Xm¦Ä¡v tXm¶ntbm? (Q) cv Bip-]-{Xn-bn-sebpw case records (Exts.B1 and X1) ]cn-tim-[n-¨-Xn cn-S¯pw Hcp hogvNbpw In-Ô. Dw3 has been examined as an expert witness. So to conclude the discussion, we would like to rely on Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005 a review of judicial opinion and an illuminating discussion on the points which are also relevant before us, what their Lordships have held can be summed up as under:-
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
In Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors. (1996) 2 SCC 634 the Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. M/s Spring Meadows Hospital and Anr. v. Harjol Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39 is again a case of liability for negligence by a medical professional in civil law. It was held that an error of judgment is not necessarily negligence. The Court referred to the decision in Whitehouse Jorden, [1981] 1 ALL ER 267, and cited with approval the following statement of law contained in the opinion of Lord Fraser determining when an error of judgment can be termed as negligence:-
"The true position is that an error of judgment may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence."
In the light of above discussions we find that there is no damaging negligence happened on the part of the opposite party. Thus point no 1 and 2 is found in favour of the opposite parties. Therefore the complaint is dismissed.
Smt. Bindhu R, Member Sd/-
Sri. Manulal V.S. President Sd/-
Appendix
Witness from the side of complainant
Pw1 : Neema Joy
Pw2 : Dr. Reji D.
Witness from the side of opposite parties
Dw1 : Dr. Deepa G.
Dw2 : Dr. Vijayakumari K.K.
Dw3 : Dr. C.P. Vijayan
Exhibits marked on the side of complainant
A1 : Ultrasound abdomen dtd.07-01-16 from KISCO Diagnostic Centre
A2 : Lab report dtd.08-01-16 from Dianotva
A3 : Discharge card dtd.13-01-16 from opposite party hospital
A4 : Discharge summary dtd.13-01-16 from opposite praty hospital
A5 : Biopsy/cytology report dtd.14-01-16 from DDRC
A6 : Scan report from Carithas hospital
A7 : Discharge summary dtd.26-01-16 from Caritas hospital]
A8 : Histopathology report dtd.28-01-16 from Caritas hospital
A9 : MRI scan report dtd.19-01-16 from Jeevan MRI Centre
A10 : Series of bills (14 nos.)
A11 : Lawyers notice by Adv.V.R. Rajesh to oppsotie party hospital
A12 : Reply notice dtd.15-03-16 by Thomas P. Makil to Adv.V.R. Rajesh
Exhibits marked on the side of opposite party
B1 : Case sheet of Upasana hospital in the name of Neema Joy
Court Ext.
X1 : Case sheet of Caritas Hospital in the name of Neema Joy
By Order
Senior Superintendent
