Date of filing: 01.04.2015
Date of transfer: 16.06.2022
Date of order: 30.09.2022
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE
PRESENT: THIRU. A. MEENAKSHI SUNDARAM, B.A., B.L. PRESIDENT
THIRU. R. ASGHAR KHAN, B.Sc., B.L. MEMBER – I
SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A., MEMBER-II
FRIDAY THE 30th DAY OF SEPTEMBER 2022
CONSUMER COMPLAINT NO. 54/2022
Mrs. Kalaivani,
W/o. Venkatasamy,
No. 13/8, Balammal Street,
Ashok Nagar,
Arumbakkam,
Chennai – 106. …Complainant
-Vs-
1. A.L.M. Medical Centre,
Rep. by its Director,
No. 856, Poonamallee High Road,
Kilpauk,
Chennai – 10.
2. Dr. A.V. Jayagopal
A.L.M. Medical Centre,
No. 856, Poonamallee High Road,
Kilpauk,
Chennai – 10. …opposite parties
Counsel for complainant : Tmt. J. Ranjani Devi
Counsel for opposite parties – 1 & 2 : Thiru. M/s. Sampathkumar & Associates
ORDER
THIRU. A. MEENAKSHI SUNDARAM, B.A.,B.L.PRESIDENT
This complaint has been filed under Section 12 of the Consumer Protection Act 1986. The complainant has prayed this Hon’ble Commission to direct the opposite parties jointly and severally to pay Rs.5,00,000/- for the negligent act performed by the opposite parties, to pay a sum of Rs.2,00,000/- hospitalization, medicines and expenses occurred for further treatment, to pay a sum of Rs.5,00,000/- future medical expenses, to pay a sum of Rs.5,00,000/- mental agony and torture and also to pay a sum of Rs.1,00,000/- cost of the proceedings.
1.The case of the complaint is briefly as follows:
The complainant found blood while passing urine and also felt burning sensation, so she consulted the second opposite party who is attached to the first opposite party. On 29.04.2013 he advised the complainant to take necessary test. As per his advice, she took the test on 30.04.2013 and she paid for the consultation. The test report revealed that the complainant had bacteria and E.coli grown in the culture and hence she had to undergo a surgical procedure. On seeing her test report, the second opposite party asked her to get admitted in the first opposite party’s hospital to undergo a surgery called Haemostasis. Further, she was admitted as inpatient on 06.05.2013 in the first opposite party’s hospital. The second opposite party has not properly explained about the consent for the surgery. At the time of surgery the second opposite party got signature from the complainant saying it is usual course. The surgery was fixed on 07.05.2013 by the second opposite party. The surgery was performed by second opposite party under local anaesthesia and they informed her husband that surgery was successful. Believing his words, the complainant’s children and her husband had a fond hope that she was alright and there were also informed that she will be discharged on 11.05.2013. The complainant paid a huge sum of Rs.50,000/- for the surgery performed by the second opposite party. On 11.05.2013 when she was discharged from the hospital the complainant was advised to come for review after a week. The catheter was removed, but when she reached her home, she had constant pain in her abdomen and found dribbling of urine while sneezing and walking. Hence, immediately she was rushed to the second opposite party. The complainant was advised to use sanitary pads and was prescribed Tablet Refzil-O 500mg and tablet Zanocin 200 mg and the complainant was asked to come for review after one week. But still, she could not tolerate the pain and there was a continuous discharge of urine without self-control. The aforesaid situation was well explained to the second opposite party over phone but, despite medication by second opposite party, she could not get proper relief for her pain and she was simply told that it would be cured in few days. Again, she consulted the second opposite party on 21.05.2013 and on 28.05.2013. He prescribed some medicines but she could not tolerate the pain. The second opposite party did not bother to hear the sufferings of the complainant and untold pain. She could not to do her day to day affairs and household work, visitation of temples etc., As she could not get any relief, immediately she went to the Apollo Hospital on 19.06.2013 and got admitted on the same day. The urologist diagnosed that it is Intrinsic Sphincteric Deficiency and there she underwent Cystoscopy, Examination under Anaesthesia. In the discharge summary it has been clearly mentioned that “She underwent Cystoscopy and transurethral resection of bladder neck was done and continuous leakage of urine was found”. The Apollo Hospital rightly found out the negligent act of the first and second opposite parties. Due to negligent act in performing the surgery by the second opposite party the complainant was put to severe mental torture and agony. The complainant issued legal notice dated 15.02.2015 to the opposite parties. The opposite parties gave a evasive reply for the same. As there was no compliance on the part of the opposite parties as contented in the legal notice, the complainant filed this complaint.
2. Written version of the opposite parties are as follows:
The complainant issued a legal notice after lapse of one and half years with a malafide intention only to extort money from the opposite parties. The second opposite party states that complainant came with the complaint of passing blood in the urine accompanied with burning sensation. She was advised to take necessary test which was done on 30.04.2013. On verifying the reports the second opposite party found that there was E-coli in the urine culture. In view of the haematuria (blood in the urine) the complainant was advised to undergo cystoscopy i.e. passing an instrument with a telescope to identify the source of bleeding. The complainant was admitted as inpatient on 06.05.2013 in the first opposite party hospital, after explaining the nature of the procedure and the risk/benefits and obtained the consent from the complainant as well as from her husband. The complainant was treated with injection ofloxacin. Her main complaint was haematuria (blood in the urine) for which she was advised cystoscopy. Before starting the procedure injection Merapenam 1 gm IV was given to control the E-coli grown in culture. Therefore, the allegation that she was not prescribed any medicine before the medical procedure is totally false. The procedure was performed under spinal anaesthesia which was administered by Dr. Vivekananda, M.D. of first opposite party hospital. Hence, it is not correct that procedure was performed under local anaesthesia as stated in para – 6 of the complaint. On 07.05.2013 to check the source of the bleeding, the surgery was done. The bladder was found to be trabeculated and inflamed with bladder neck hypertrophy. So, TUR of the bladder neck was performed at 12 o’ clock position to reduce the stagnation of urine and bladder pressure under spinal anaesthesia period She was discharged on 11.05.2013 and she did not complaint of any discomfort. The complainant over phone complained of constant pain in the abdomen and dribbling of urine while sneezing which can happened in post operatively. She was advised antibiotics for the pain and for dribbling of urine she was asked to stop passing urine suddenly and then release which would help her improve her pelvic floor muscles. This complaint was due to fact that she had undergone Hysterectomy and Cesarean section (twice) which contributes to pelvic floor weakness before this procedure was done. After discharge i.e. on 11.05.2013 the complainant did not come for review or further follow up as advised. Thereafter, there was no information/complaint from the complainant about her health condition. The opposite parties deny that she came to the first opposite party Hospital on 28.01.2013 for review. The allegation contained in para-9 of the complaint regarding the Apollo Hospital treatment are denied. In this connection, the opposite parties deny Intrinsic Sphincter Deficiency was caused by the TUR of bladder neck as only two cuts were made in the roof at 12 o’ clock position to relieve the residual urine in the bladder and set right the inflammation in the fundus.
The case records of Apollo hospital following facts emerge-Cystoscopy revealed normal urethra and bladder neck wide open a plan for bladder neck suspension TOT for extrinsic sphincter Deficiency was made surgery was complicated by a button hole injury to the urethra-hence the repair of urethra and flap integration was done and the attempt to do trans obturator tape TOT abandoned. It is submitted that the bladder neck incision performed at first opposite party hospital has no permanent sequels and cannot the cause incontinence but this is due to previous pelvic surgery hysterectomy and button hole injury during attempted TOT. The patient should not have undergone a second surgery within a short time. Generally urinary incontinence in female is managed with bladder supporting pelvic exercises and anti-cholinergic drugs like Tropon and Roliten and if the problem continuous for a prolonged period the surgery will be done if the above measures fail and that also after 3 to 6 months period of conservative management. In any event, the opposite parties submit that there was nothing wrong in the treatment given by them. And thus, the opposite parties are not at all liable to pay any compensation much less for medical negligence or mental agony and torture as alleged in the complaint. It is therefore prayed that this Hon’ble Commission may be pleased to dismiss the complaint with costs.
3. Proof affidavit of complainant filed. Ex.A1 to Ex.A14 were marked. Proof affidavit of opposite parties filed. Ex.B1 marked. Written argument of both sides filed. Oral arguments of both sides heard.
4. The Points that arises for consideration are:
1. Whether there is any deficiency in service on the part of the opposite
parties?
2. Whether the complainant is entitled for relief as claimed in the complaint?
3. To what relief, the complainant is entitled to?
5. POINT NOS.1&2: The complainant approached the first opposite party on 29.04.2013 with complaint of blood while passing urine and felt burning sensation. As per the advice of the second opposite party several tests were done and found that bacteria was in the culture and also E-coli was present. Therefore the second opposite party admitted the complainant in the first opposite party hospital and a surgery called Hemostasis was done on 07.05.2013. Thereafter, she was discharged on 11.05.2013 without any complaint. The allegation of the complainant is that when the complainant came for review on 11.05.2013, she complained of dribbling of urine while sneezing and she also had a constant pain and suffering in the lower abdomen. The opposite party prescribed some medicine and advised the complainant that it will be alright in due course. But she could not tolerate the pain and there was a continuous discharge of urine without control. Therefore, she has again met the second opposite party, on 21.05.2013 and 28.05.2013. But the pain did not subsidize and the problem became aggravated. Therefore, the complainant was forced to get admitted in the Apollo Hospital on 19.06.2013, where she underwent various tests and found that she is suffering with Intrinsic Sphincteric Deficiency. To cure the same Apollo Hospital did cystoscopy procedure. On the other hand, the counsel for opposite party contended that in the absence of expert opinion the negligence of the doctor could not be proved. In this regard the counsel for the complainant produced a Supreme Court Order in
Reported in 111(2010 CPJ 1 (SC)
V. Kishan Rao
Vs
Nikhil Supra Speciality Hospital & Anr.
Held that,
Para 55. This court further holds that in the facts and circumstances of the case expert evidence is not required and District Forum rightly did not ask the appellant to adduce expert evidence. Both State Commission and the National Commission fell into an error by opinion contrary. This Court is constrained to set aside the order passed by the State Commission and the National Commission and restores the order passed by the District Forum.
On going through the medical records of Apollo hospital discharge summary we find that cystoscopy was done and mid urethral button hole injury was confirmed. Urethral injury was closed in two layers with 4-0 Vicryl. On perusal of the discharged summary we find that there was an injury in the urethral. In our opinion the injury does not happen on its own or due to urinary tract infection. Hence, we understand that the injury must have happened due to an external force and in this case, it might have occurred due to the surgery performed by the opposite parties. Therefore, we find that the opposite parties are held responsible for the surgery and hence, there is deficiency in service on the part of the opposite party. Further, in view of the Hon’ble Supreme Court Order, in the present case the non-examination of the expert is not a fatal to the case and the argument put forth by the opposite party is not sustained. Hence, these Point Nos. 1 and 2 are decided in favour of the complainant.
6. POINT NO.3: As we have decided in Point Nos. 1 and 2 that there is deficiency in service on the part of the first and second opposite parties. The first and second opposite parties are jointly or severally directed to pay a sum of Rs.9,00,000/- (Rupees Nine Lakhs only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards cost to the complainant. Hence, this Point No.3 is also answered accordingly.
7. In the result, this complaint is partly allowed. The first and second opposite parties are jointly or severally directed to pay a sum of Rs.9,00,000/- (Rupees Nine Lakhs only) as compensation for deficiency in service and mental agony and also to pay a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) towards cost to the complainant, within one month from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 9% per annum from the date of this order to till the date of realization.
Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this the 30th September 2022.
Sd/- Sd/- Sd/-
MEMBER-I MEMBER – II PRESIDENT
LIST OF COMPLAIANNT SIDE DOCUMENTS:
Ex.A1-29.04.2013 – Copy of the prescription issued by the first opposite party
Ex.A2-29.04.2013 – Copy of test suggested by the first opposite party
Ex.A3-01.05.2013 – Copy of the lab report given to the complainant
Ex.A4-08.05.2013 – Copy of the prescription issued by the first opposite party
Ex.A5-11.05.2013 – Copy of the cash bill issued by the opposite party
Ex.A6-11.05.2013 - Copy of the discharge summary issued by the opposite parties
Ex.A7-11.05.2013 –Copy of the prescription issued by the first opposite party
Ex.A8-21.05.2013 – Copy of the prescription issued by the first opposite party
Ex.A9-28.05.2013 – Copy of the prescription issued by the first opposite party
Ex.A10-01.06.2013 – Copy of the prescription issued by the first opposite party
Ex.A11-22.06.2013 – Copy of discharge summary issued by the Apollo Hospitals
Ex.A12-15.02.2015 – Copy of the legal notice issued by the complainant along with
postal receipts
Ex.A13-10.03.2015 – Copy of the acknowledgement card
Ex.A14-18.03.2015 – Copy of the reply notice issued by the opposite parties
LIST OF OPPOSITE PARTIES SIDES DOCUMENTS:
Ex.B1-06.05.2013 – Copy of case sheet, medical summary, etc.
Sd/- Sd/- Sd/-
MEMBER-I MEMBER – II PRESIDENT
