Tamil Nadu

StateCommission

FA/854/2008

Manimegalai - Complainant(s)

Versus

Murali - Opp.Party(s)

B. Vijayakumar

16 Apr 2015

ORDER

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

BEFORE        Thiru. J.JAYARAM                  PRESIDING  JUDICIAL MEMBER

                       Tmt. P. BAKIYAVATHI                                                 MEMBER

F.A.NO. 854/2008

[Against the Order in  C.C No.104/2003 dated 30.10.2007   on the file of the DCDRF, Salem]

DATED THIS THE 16^th   DAY OF APRIL 2015

Manimegalai

S/o Chinnapaiyan, Belur Road

Valapadi, Valapadi Taluk

Salem District                                                                                     ..Appellant/complainant

                                          Vs

Dr.Murali

Rajasowdeswari Hospital

Opp.to Police Station

Valapadi – 636 115,

Salem District                                                                                  ..Respondent/opp.party

 

Counsel for the Appellant/complainant       : M/s B.Vijayakumar

Counsel for the Respondent/opp.party       :    M/s Anand, Abdul, Vinoth

 

This appeal coming before us for final hearing on 6.2.2015 and on hearing the arguments of both sides, and upon perusing the material records, this commission made the following order.

THIRU.J.JAYARAM, PRESIDING JUDICIAL MEMBER

1.         The case of the complainant is that she was suffering from severe stomach pain for quite some time and on 6.3.2003  she went to the opposite party’s hospital for consultation. The opposite party readily advised  surgical removal of the uterus, since there was bleeding from the uterus or otherwise it would be fatal and for the surgery, the opposite party demanded Rs. 14,000/- and she was admitted as an inpatient. The opposite party performed the surgery without conducting the essential tests before operation. The operation theatre was not sophisticated and was not well equipped. But even after surgery, she continued to suffer and she was not relieved of the pain and the opposite party told her that the pain was due to the sutures made

during surgery and the opposite party prescribed pain killers.   The opposite party did not conduct the necessary post-operative tests. She was discharged from the opposite party’s hospital on 13.3.2003 with the same pain and suffering. She was taking medicines prescribed by the opposite party for forty days. But the pain-related sufferings did not subside and so she consulted another lady doctor/Gynecologist and at her instance scan was taken and on examination it was found that cyst was formed in the right ovary and the cyst was removed by surgery on 25.4.2003 by the Gynecologist and after that she was completely relieved of the pain. Instead of removing the cyst in the ovary, the opposite party removed the uterus without proper examination and proper investigation and without conducting the essential tests and the removal of the uterus (hysterectomy) is unwarranted.

2.        According to the opposite party, on examination of the patient, he found profuse bleeding pervaginum and it was “Dysfunctional Uterine Bleeding (DUB) and so he was constrained to take immediate steps for removal of uterus to save her life. Therefore she was immediately admitted in their hospital as inpatient and after getting the consent of the complainant and also her husband, hysterectomy was performed and her uterus was removed. There was no wrong diagnosis and there is no negligence or deficiency in service in performing the surgery. Diagnosis of cyst in the ovary by the lady Gynecologist and the surgery done for the removal of cyst is a new development and a subsequent entity, for which the opposite party cannot be held responsible or liable. The opposite party received a sum of Rs.12,400/- for the surgery besides pre-operative and post-operative tests and care including the cost of the tests. There is no negligence or deficiency in service on his part.

3.             The District Forum considered the rival contentions and dismissed the complaint holding that there is no negligence or deficiency  in service on the part of the opposite party.

4.            Aggrieved by the impugned order, the complainant has preferred this appeal.   

5.           It is pertinent to note that the complainant/appellant approached the opposite party/Respondent on 6.3.2003, complaining of abdominal pain and on examining her, the opposite party instantly decided to remove the uterus, since it was bleeding and  hysterectomy was conducted on the same day and her uterus was removed by surgery. We come to know that from the case history and other records that the complainant is aged 35-38 years and so the opposite party being, “General Surgeon” he ought to have referred the complainant to a gynecologist either for treatment or for opinion which is vital but was not done in this case and hysterectomy (surgical removal of uterus) ought to be opted and planned as the last resort, only if left with no other option at all. The opposite party ought to have taken scan and only after considering the scan report and obtaining Gynecologist’s opinion he ought to have decided about the further management and further course of action.

6.    It is relevant to note that that the scans report under Ex.B.3 dated 10.3.2003 and Ex.B.5 dated 6.3.2003 are quite unreliable.  The opposite party has stated that as soon as the complainant met him, he examined her and she was admitted in the hospital as an inpatient to undergo hysterectomy and that she was discharged on 13.3.2003 and he has not stated anywhere that she was taken to Salem scan centre which is about 35 or 40 kms away,  to take scan on the very same day of admission i.e on 6.3.2003 and on 10.3.2003 when she was an inpatient and that he perused scan reports before taking the decision to perform the surgery to remove uterus and we have to take note of the fact that hysterectomy has been done in undue haste. Even when the scans under Ex.B.3, and Ex.B.5 are disputed, no scan photos or slides were produced along with the scan report.

     7.      The complainant has filed the following extracts of medical literature which read as follows:-

       Dysfunctional uterine bleeding is rarely associated with the need for a blood transfusion unless it is a chronic condition. Hemorrhagic shock and death are rare sequelae for DUB

        Diagnosis of AUB requires a detailed history and review of systems a thorough physical examination and appropriate laboratory testing. A detailed clinical history will reveal systemic and medical conditions that cause menstrual dysfunction inherited and acquired disorders of coagulation, liver and renal diseases frequently present with symptoms of abnormal  uterine bleeding.

        The physical examination must be detailed and complete, even in the presence of heavy bleeding. Initially, a thorough inspection of the skin is important, particularly to establish the presence of acanthosis nigricans (seen in woman with insulin resistance and anovulation) ecchymosis or hyperandrogenism (hirsutism, acne, clitoromegaly, or male pattern baldness) Thyromegaly should be ruled out.  A thorough gynaecologic examination should be performed with a systematic evaluation of the vulva, vagina, cervix, uterus, adnexa, bladder, and rectum. Special attention to the cervix is  important to exclude cervicitis, ectropion, sexually transmitted ulcerations and cervical polyps. The speculum should be rotated to fully visualize the vaginal fornices and to establish the absence of ulcerations or foreign bodies. The patient should be instructed to empty her bladder to felicitate the evaluation of the adnexa as well as the uterine contour, size and the presence of uterine tenderness.

        Dysfunctional uterine bleeding due to anovulatory cycles is best treated medically; surgery is suggested when medical therapy fails or is contraindicated. Generally, OCPs are the mainstay of therapy. Several medical strategies are also effective in treating this disabling condition, and therapy must be tailored to the individual patient. Medical therapy is very effective in managing most patients with DUB however, clinicians must be informative and reassure women about the safety/effectiveness. In a stable patient, it is advisable to have at least a 3-month trial of medical therapy, oral contraceptive pills.

        Oral contraceptive pills have many roles in the treatment of menorrhagia and DUB. Combined estrogen-progesterone therapy reduces menstrual blood flow and estrogen raises levels of both factor VIII and VWF. In those with mild bleeding, OCPs are prescribed in  a dose identical to that used for contraception (21 days of hormonally active pills followed by 7 days of placebo, during which time withdrawal bleeding occurs). Parents of adolescents with DUB should be reminded that the treatment is being used for its hormonal effects, not as a cotraceptive modality.9

Nonsteroidal Anti-inflammatory Drugs”.  

8.     From the above, we come to know that  bleeding may be due to various reasons and even in case of heavy bleeding, proper investigation should be done to ascertain the cause of bleeding and only after diagnosing the problem and only after considering the various options and only if there is no other alternative,  hysterectomy could be planned as the last resort.

 9.       The contention of the opposite party that only in view of the bleeding, he took the decision to remove the uterus is, untenable. It is patently evident that the opposite party has not taken  scan before planning surgery and above all he failed to obtain the opinion of Gynecologist and without considering the other options he straight away performed  hysterectomy and removed the uterus which amounts to serious negligence and deficiency in service on the part of the party. 

10.          The complainant further contended that the pain did not abate even after hysterectomy and so she consulted a lady Gynecologist and at her instance scan was taken and after proper investigation and after diagnosing the problem, the surgery was done for removal of cyst in the ovary and thereafter she was totally relieved of the pain.

 11.       It is relevant to note that the hysterectomy was done on 6.3.2003  by the  opposite party and within a short span of time, the cyst has been removed by surgery on 25.4.2003. The scan report Ex.A.2, reveals the size of the cyst as 5.8 X 4.1. cms and Ex.A.3, scan report discloses the size of the cyst was 6.2 x 4.0 cms.

12.   Considering all these, we feel that there is every possibility of the cyst remaining even when hysterectomy was done and the cyst in ovary could be the real cause of pain and that is why she was completely relieved of the pain immediately after removal of the cyst in the ovary.

13.     Thus it is clearly established that there is negligence and deficiency in service on the part of the opposite party in not following the standard protocol in treating the patient/complainant.  The complainant has discharged her initial burden of proving the negligence on the part of the opposite party and then the onus shifts on to the opposite party to rebut and establish  that there is no negligence on his part, as laid down by the Hon’ble Supreme Court in the following case.

      Nizam Institute of Medical Sciences – Vs – Prasanth.S Dhanaka and others reported in 2009 – INDLAW SC 1047 wherein it is held that

“ in a case involving medical negligence, once the initial burden has been discharged by the complainant, by making out of a case of negligence on the part of the hospital or the doctors concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence”

     The opposite party has failed to rebut and disprove the case of negligence against him and to substantiate that there is no negligence on his part.  

14.        On consideration of the entire materials on record, we hold that there is gross negligence and deficiency in service on the part of the opposite party and that the opposite party has been remiss in rendering medical service to the complainant.

15.      The District Forum has erred in dismissing the complaint without assigning proper reasons and therefore in view of our finding, the order of the District Forum is liable to be set aside.

16.      The complainant has claimed refund of the entire amount of Rs.14,000/-   paid to the opposite party towards medical fee  and medical expenses and a sum of Rs.20,000/- towards the expenses for the surgery performed by the Gynecologist elsewhere and Rs.5 lakhs towards compensation for mental agony and pain and sufferings and Rs.5000/- towards legal and litigation expenses and Rs.500/- for issuing legal notice. According to the opposite party, he received only a sum of Rs. 12,400/- towards medical fee as found in the receipts under Ex.B.2/Ex.A.6.

17.     Having regard to the facts and circumstances of the case and considering the various relevant factors, we feel that the complainant is entitled to refund of the medical fee of Rs.12,400/-  paid to the opposite party and award of Rs. 3,50,000/- would be the reasonable compensation for the loss of uterus and a further sum of Rs.1,00,000/- would be the reasonable compensation for pain and sufferings and  costs of  Rs.25,000/-.

             In the result, the appeal is allowed in part setting aside the order of the District Forum and directing the opposite party to refund the sum of Rs.12,400/-(Rupees Twelve Thousand Four Hundred only) received by him towards medical fees  and expenses and to pay a sum of Rs.3,50,000/- (Rupees Three Lakh Fifty Thousand only) as compensation for the loss of vital organ (uterus) caused due to the negligence and deficiency on the part of the opposite party and to pay a sum of Rs.1,00,000/- (Rupees One Lakh only) as compensation for mental agony and sufferings and to pay costs of Rs.25,000/-(Rupees Twenty Five Thousand only).

 

  P.BAKIYAVATHI                                                                       J. JAYARAM                    

        MEMBER                                                                PRESIDING JUDICIAL MEMBER