KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM
CC.13/06
JUDGMENT DATED: 16. 04. 2011
PRESENT:
JUSTICE SHRI K. R. UDAYABHANU -- PRESIDENT
SHRI.S. CHANDRAMOHAN NAIR -- MEMBER
Smt.C.Rekha w/o M. B. Ashok Kumar
Souparnika TRA 48, -- Complainant
T.C.35/344 Vallakkadavu
P. O. Thiruvananthapuram.
(By Sri.V.Hariprasad
Vs.
1. M/s R.C.P.M Hospital,
Changan kulangara, Oachira, -- Opposite Parties
Kollam.
2. Dr.Narayana Kurup,
Gynecologist, M/s.R.C.P.M. Hospital,
Changan Kulangara, Oachira,
Kollam.
3. Dr.Sreekumari
Gynecologist, M/s.R.C.P.M. Hospital,
Changan Kulangara, Oachira,
Kollam.
4. Dr.Ravikumar,
Consultant Anesthetist, M/s.R.C.P.M. Hospital,
Changan Kulangara, Oachira,
Kollam.
5. Dr. Shareef Ahammed,
Surgeon, A.M. Hospital,
Karunagappally,
Kollam.
(By R1 to R5 Adv. K.Muralidharan Nair)
JUDGMENT
JUSTICE SHRI K. R. UDAYABHANU:PRESIDENT
The complainant has claimed a sum of Rs.48,24,000/- towards compensation on the ground that the surgery etc. conducted by the Opposite Parties 2 to 5 at first Opposite Party hospital was vitiated by negligence and lack of adequate care. As per the averments in the complaint she consulted the 3rd opposite party gynecologist of the hospital in January 2006 on account of continuous back pain. After under going ultra sonogram she was informed the 2nd and 3rd opposite parties/doctors that she is having an ovarian cyst and the same has to be removed by laparoscopic surgery. She was told that it is a minor procedure. The complainant was admitted at the hospital on 28.02.2006. She was taken to the operation theatre 01.03.2006 at about 8 a. m. It is alleged that the procedure was done in a careless and negligent manner. Instead of removing the ovarian cyst they caused a serious full thickness injury to the rectum, the ascending, mid transverse and descending colon of the large intestine. On realizing the serious error they summoned the 5th opposite party/surgeon working in a nearby hospital without the knowledge of complainants’ relations and continued the operation. At about the 12.30 p m the 2nd opposite party summoned the husband of the complainant and informed as to the error occurred and got him sign certain papers. By the evening it was informed that colostomy was done to the complainant by the 5th opposite party. In the next morning itself the complainant was removed to the Medical College Hospital(MCH),Trivandrum in an ambulance of the opposite parties and accompanied by the junior doctor of the hospital. It is alleged that the colostomy done was also in a careless manner and resulted in further injury to the internal organs. The doctors of MCH conducted a major operation and removed the injured and infected organs. The distal racial stump was closed and colostomy was refixed. She was discharged on 15/06/2006. On 26/06/2006 she was again admitted and underwent a major operation on 05/07/2006 to remove colostomy. The same was not successful. Another major operation was done on 8.7.2006 and the colostomy was retained. She was told that she will have to continue with the colostomy during the entire life. The complainant was aged 32 years and has passed M Sc –( Zoolology) and B. Ed. She was working as a teacher of +2 course in S N Central School, Kayamkulam from 1998 onwards. She has also passed the State Eligibility Text (SET). She was drawing a monthly salary of Rs.9000/-. She is married and is having 2 minor children. On account of the present physical condition she is unable to lead a normal family life. The complainant has lost her employment and would not be able to do any work with a permanent colostomy bag. She needed treatment for ever and assistance even for her daily needs. She has claimed the compensation under various heads Rs. 3,00,000/- for treatment expenses, loss of income including future income ie., Rs.30,24,000/-, and Rs. 5,00,000/- for loss of amenities etc.
2. The opposite parties has failed a joint version. It is stated that the complainant consulted the 3rd opposite party on 03.11.2005 with a request for laparoscopic sterilization. She gave a history of having at her 2nd delivery in 2000 in the hospital. She wanted the procedure to be done in April. On 06.02.2006 she again came to the same doctor with complaints of feeling heaviness in the lower abdomen, frequency of micturition and backache. After taking a detailed history and examination, the 3rd opposite party felt a cystic mass, on the right side. She was advised an Ultrasound Scan. It was found as per the U. S. S report that the uterus is anteverted, measuring 97x51x65 mm. Submucosal seedling fibroid was seen in the fundus. Copper-T was seen in the cervical canal. Multi loculated cystic lesion 150 x 90 x 123 mm, possibly arising from left ovary (sic.) was seen. Diagnosis of ovarian cyst was made and she was advised surgery for the same. Her blood sugar test was done the same day, which turned out to be high and she was referred for medical opinion for control of her hyperglycemic state. The patient reported again to 3rd Opposite Party on 25.2.2006, with a fitness certificate from a physician, for undergoing surgery. Pre-anesthetic check up was done by the 4th Opposite Party and she was posted for surgery on 1.3.2006. The 3rd Opposite Party discussed in detail the merits and demerits of laprotomy and laproscopic approach in dealing with her ailment. The patient opted for laparoscopy procedure. She was thus admitted on 28.2.2005 for Cystectomy and interval tubal sterilization. Bowel wash and pre-anaesthetic medication were given. She underwent surgery on 1.3.2006 by the 2nd and 3rd Opposite Party with the 4th Opposite Party as the anesthetist after taking an informed consent.
3. Since the cyst was large in size, the cystic fluid had to be aspirated out, after which the cyst is to be removed. Hence, while the cyst was being removed, the cyst got ruptured exuding the cystic material into the peritoneal cavity. Since the patient had requested and given consent for sterilization, right salpingo-oophercetomy was done. The sterilization procedure was completed on the left side by application of fallope rings and cauterization of the left tube. The Copper-T was removed from the uterus through the vaginal route. A seedling fibroid was removed from the uterus. After this, the specimen was removed, through a colpotomy incision and it was sent for histopathologial examination. At that time rectal injury was suspected. The 5th Opposite Party an expert surgeon was called in. After examining the patient he opined laprotomy, as the only way to deal with the situation. The condition of be patient was discussed with her husband and some other relatives by the 2nd and 5th Opposite Parties and consent were obtained for colostomy if required. On opening the abdomen it was found that there was a rectal tear, descending colon appeared hemorrhagic with a longitude tear, along the tinia. Mucosa of the discending colon and transverse colon were found separated from the seromuscular layer.
4. The patient was shifted to the MCH, Trivandrum on the next day. During shifting 2 doctors accompanied the patient along with a detailed medical summary. The allegations of the complainant are denied. The 4th opposite party is anesthetist and is in no way associated with the complications that developed. It is contended that the surgery was done with almost care and caution. During colpotomy, a partial injury to the anterior rectal wall occurred. This injury, did not enter into the rectal lumen, but stopped short of the mucosal layer. As there was carbon-di-oxide in the peritoneal cavity, for pneumoperitonium the gas could have entered into this layer and effected a pneumatic dissection. Also, with the pulling of the specimen, the dissection of the mucosa, extended to a higher level. As regards tear of the serosal surface of the colon; while the patient was under pneumoperitonium, there was no tear visible. Once colpotomy was done and the intra-abdominal pressure decreased, the pressure inside the seromuscular tube of the colon, could have resulted in rupture of the tube.
5. It is contented that every care was taken during the surgery. Complications are always unexpected. In the instant case even though all precautions were taken, a known but rare complication, of injury to the neighboring viscera has occurred. It is contended that the claims made are exorbitant and exaggerated. A person who uses a permanent colpotomy bag can lead an otherwise normal life. The opposite parties have sought for dismissal of the complaint with compensatory costs.
6. The evidence adduced consisted of the testimony of PWs 1 & 2, DWs 1 to 4 and exts.A1 to A10, B1, X1(a) and X2.
7. PW1 is the complainant herself and PW2 is the head of the Surgical Gastro Entrology Department at Medical College Hospital who conducted the surgeries on the complainant subsequent to her admission at the Medical College Hospital on reference from on the first opposite party hospital. DW1 is the second opposite party gynecologist who is also the proprietor of the first opposite party hospital. It was he who conducted the laparoscopic surgery on the complainant that ended in complications. DW2 is the third opposite party gynecologist who assisted the second opposite party in the laparoscopic surgery. DW3 is the 4th opposite party Anesthetist at the first opposite party hospital who induced Anesthesia on the complainant. DW4 is the 5th opposite party surgeon working in another hospital who was called in to conduct colostomy on the complainant. DW5 is the Professor and Head of Department of Obstetrics and Gynecology at the Medical College Hospital, Thiruvananthapuram. Ext.P10 is the discharge card of the complainant from the Medical College Hospital. Ext.X1 is the case sheet of the complainant at Medical College Hospital. Ext.X1 (a) is the referral letter from the first opposite party hospital attached with Ext.X1. Ext.X2 is the case sheet of the complainant from the Medical College Hospital wherein she was again admitted and underwent another surgical procedure. Ext.B1 is the case sheet of the complainant at the first opposite party hospital.
8. It is an admitted case that the complainant was admitted at the first opposite party hospital for Cystectomy and internal tubal sterilization through laparoscopic surgery. It is the admitted case of the opposite parties that during the procedure Cystectomy was done as well as the Salphingo- Oopherectomy. The sterilization procedure was completed on the left side by application of fallope rings and cauterization of the left tube. It is also their case that Copper-T was removed from the uterus through the vaginal route. A seedling fibroid was removed by the uterus. According to the opposite party at that time rectal injury was suspected. The details as mentioned in Ext.X1 (a) the reference letter are as follows:
Ultra sound done – multi parous - cyst – small fibroid – displaced copper T – multi loculated hemorrhagic cyst laparoscopy was done on 1.3.06/ 10 mm main port and 3 accessory ports – pneumo peritoneum with Carbon dioxide- Uterus normal in size – left tube and ovary normal – right ovary cystic – ruptured while dissection spilling hemorrhage – chocolate material - right salphingo – oopherectomy done – colpotomy done to retrieve the dissected matter – on pulling tubular structure coming out . Rectal injury noted - surgeon called in – emergency Laprotomy done – on examination; ascending, mid and descending colon found hemorrhagic - longitudinal tear of the tinea – whole mucosal tube, separated from the muscular layer – rest of the viscera found normal – pneumo dissection of the mucosa through the tear – Linear tear repaired after putting the mucosal tube inside – colostomy done. The procedure was done at 4.58 pm. According to the complainant at 8 am she was taken to the operation theatre for laparoscopy. Subsequent to the complications the 5th opposite party Surgeon was called in and he performed Laparotamy and Colostomy. What has been stressed by the counsel for the complainant is that in Ext.B1 case sheet of the first opposite party/hospital an important factor that has been mentioned in Ext.X1 (a) reference letter has been suppressed. The same is the fact mentioned in Ext.X1 (a) “ on pulling tubular structure coming out”. What has been stressed is that after putting the colpotomy incision opposite parties 1 and 2 caused on injury to the large intestine and that what has been pulled out is the mucosal tube which is the inside part of the large intestine instead of the burst remains of the cyst and the right ovary. On resulting the mistake the 5th opposite party/Surgeon was urgently called in and laparotomy was done and the dissected matter from the large intestine was put inside and colostomy was done. The same has caused infection which has further complicated the matters. The very suppression of the words that tubular structure came out on pulling is sufficient to establish negligence on the part of the opposite parties 1 & 2, it is submitted. On the other hand, it is the contention of the counsel for the opposite parties that what is happened is a freak accident, the like of which is not recorded in medical journals. According to the opposite parties a tear in the rectum was occasioned during the procedure and the same resulted in a tear in the large intestine, and the gas used for the procedure infiltrated into the tear in the large intestine and the pressure resulted in separating the mucosa of the intestine from the rest of the large intestine. As is evident the above explanation would not explain the words in Ext.X1 (a) reference letter that on pulling tubular structure came out. PW2, the surgeon who attended the complainant at the Medical College Hospital has also explained the relevant notes in Ext.X1 (a). He has stated that it is mentioned in the referral letter that while doing the procedure the cyst was burst, and when incision was put in the vagina for removing the ovary a tubular structure came out. PW2/Surgeon of Medical College Hospital removed the damaged portions of the large intestine and did a colostomy. Subsequently, the complainant was again admitted for connecting the large intestine with the remaining portion of the rectum in order to avoid the colostomy. As the rectal portion was very short, the operation was not successful, and hence the colostomy was retained. The fluid collection was also aspirated. Both the above operations were done under general Anasthasia. He has also stated that at the time of laparoscopy at the first opposite party hospital, it was on account of the pressure of the gas that the injury of the large intestine happened during the procedure, and the mucosa inside the large intestine separated from the muscular layer. He has specifically stated that during the procedure the large intestine ought not to have been injured. He has also stated that on account of a minor mistake such injury can take place. He has also stated that the portion of the ovary that has been cut for removing and the portion of the large intestine can be separately identified through the laparoscopi. He has also stated that the complainant will have to live with the colostomy through out her life. He has also stated in the cross-examination that a rectal injury during such procedure takes place very rarely. On a pointed the question he has stated that such percentage of mistakes can be 1% and even if it experts do the surgery the same can take place. He has denied the suggestion that it would not be possible to detect such injuries immediately. He has also stated that the injury taken place in the laparoscopic procedure is such that can be detected immediately. He has also stated that after detecting the injury the further treatment carried out was as per the standard procedure. He has also stated that the mucosal tube removed by him could be around 90 cm as suggested. Usually, on account of illness if the mucosal layer is to be removed the maximum length removed would be 10 cm. He has also stated that in certain persons the vagina and rectum will adjoining and in such cases when the vagina is opened there is likely hood of rectal injury.
9. DW5, the Head of Department of Gynecology of the Medical College Hospital who was examined at the instance of the opposite parties as an expert. He has stated that while doing colpotomy rarely rectal injuries can take place. He has also stated that even if colpotomy is done correctly while pulling out the tissues sometimes the colpotomy incisions may tear and affect the other organs, especially in the case of ladies who have given birth to more than one child.
10. DWs 1 & 2 are the surgeon who conducted the laparoscopy and the gynecologist who assisted respectively has deposed in support of the averments in the version. According to him he used to conduct the laparoscopy procedure since 1998. He had worked in the Medical College Hospital earlier. The 5th opposite party/Surgeon is attached to another hospital was summoned in the light of the emergency and he conducted laprotomy as well as colostomy. He has stated that he did the colostomy and the affected portion ie; the transverse colon and descending colon were retained for the purpose of joining it latter. He has submitted that the tubular structure was put inside and switched. There is no suggestion to DW4 that what he did has resulted in infection as contented by the counsel for the complainant.
11. Another point that has come out the explanation of colpotomy by DW5, the Professor for the Medical College Hospital he has stated that colpotomy is done at postier fornix which is above the posterier valve of vagina. Incision is put above the posterior valve of the vagina for entry into the peritoneal cavity. Evidently, in the instant case the injury that has taken place is the portion of the vagina which is not at the spot mentioned by PW5. If the incision was put at the posterior fornix of the vagina there is no possibility of a rectal injury. Further the injury noted in Ext.X1 case sheet of the Medical College Hospital is at sigmoid colon. It is also mentioned that it is a full thickness tear. The serosal tear (longitudinal) of the proximal colon up to mid transverse colon has taken place. The case of the opposite parties is that the right dissected ovary, fallopian tube and the cyst was taken out through the incision also has to be suspected. What has come out while pulling is a tubular structure. It is possible that while pulling the large intestine got further dissected inside. Opposite parties 2 and 3, gynecologists being experts ought to not to have committed such a mistake. The complainant has reposed trust in them under the impression that they are experts. Very serious consequence have been ensued on account of the mistake committed by the opposite parties 1 and 2. The above conduct on the part of the opposite parties 1 and 2 cannot be treated as a possible eventuality of such a surgery. Even PW2, the surgeon of the Medical College Hospital who has otherwise deposed as to the possibility of such injuries has stated that such injuries should not have been taken place while performing laparoscopic surgery at the above portion. We find that the above conduct of the opposite parties 2 and 3 amounts to actionable negligence.
12. There is no evidence to show that the 4th opposite party/ anesthetist was negligent. Hence we find that the 4th opposite party is not liable. In the case of the 5th opposite party/surgeon, it is alleged that he conducted the procedure of colostomy in a careless manner and that it is his act of putting back the mucosal tube back inside the large intestine that caused the infection. There is no proper evidence in this regard to substantiate the allegation although the 5th opposite party has admitted that he has placed the mucosa layer inside the intestine. We find that there is no sufficient evidence to indict the 5th opposite party/surgeon as well.
13. So far as the compensation is concerned, the complainant has produced the certificate of date of birth, the copies of the B-Ed certificate, and the post graduate degree certificate which would show that she has passed the examinations in first class. She has also produced the certificate of State Eligibility Test. As per Ext.A9, the certificate of the Principal of the Sri Narayana Central School she is working therein as a teacher of the + 2 classes from June 98 to February 2006. The salary is not mentioned therein. According to the complainant she was getting Rs.9,000/- per month. There is nothing to dis-credit the version of PW1, the complainant that she has stopped working and is unable to work as a teacher on account of the fact she has to carry a permanent colostomy bag. She was aged only 32 at the time of undergoing the surgery at the first opposite party hospital. According to her, she is unable to have a proper marital life. We find that in the circumstances there is nothing to dis-believe the evidence to PW1 in this regard.
14. In the circumstances, we find that it would be reasonable to award a sum of Rs.25,000/- towards the pain and suffering undergone on account of the multiple surgeries and Rs.50,000/- towards loss of amenities during the treatment as well as in future. A sum of Rs.30,000/- is awarded towards loss of earning during the period of treatment. A sum of Rs.20,000/- is awarded towards loss of expectation of life. A sum of Rs.5 lakh would be reasonable towards her future loss of earning taking into account the un-predictables as well. A sum of Rs.50,000/- is awarded towards the treatment expenses including the amount required for future treatment. The complainant will be entitled for 6.75 lakhs altogether. The complainant will also entitled for interest at 7% per annum from the date of complaint ie; 27.12.06. The complainant will be entitled to cost of Rs.7,000/-. The opposite parties 1 to 3 would be jointly and severally liable to pay the amount. The amounts are to be paid within 4 months from the date of receipt of this order failing which the complainant will be entitled for interest at 12% on the amount of 6.75 lakhs from 16.4.2011, the date of this order.
JUSTICE K. R. UDAYABHANU -- PRESIDENT
S. CHANDRAMOHAN NAIR -- MEMBER
s/L
APPENDIX
Ext.A1 : Copy of Advocate notice issued to the opposite party.
Ext.A2 : Postal receipts
Ext.A3 : Acknowledgement cards
Ext.A4 : Reply letters
Ext.A5 : 3rd page of SSLC book in Chithra Lekha
Ext.A6 : MSC Degree certificate of Rekha.C.
Ext.A7 : B.Ed certificate of Rekha.C
Ext.A8 : Ext.A9 : Experience certificate of Rekha.C
Ext.A10 : Discharge card.
OPPOSITE PARTIES EXHIBITS
B1: Case sheet of Rekha.C.
COURT EXHIBITS
X1 : Case records in Medical College Hospital,
Thiruvananthapuram
X1 (a) : Refer report issued to R.C.P.M.Hospital,
Changankulangara, Oachira.P.O.
X2 : Case record in Medical College Hospital,
Thiruvananthapuram dated 24.7.07
COMPLAINANT WITNESS
PW1 : Rekha.C.
PW2 : Dr.Subhalal
OPPOSITE PARTIES WITNESS
DW1 : Dr.Narayana kurup
DW2 : Dr.Sreekumari
DW3 : Dr.G.Ravikumar
DW4 : Dr.Sherif
DW5: Dr.V.Rajasekharan Nair.
JUSTICE K. R. UDAYABHANU -- PRESIDENT
S. CHANDRAMOHAN NAIR -- MEMBER
