Date of Filing: 20/10/2014
Date of Order:21/09/2017
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This is the complaint filed U/S 12 of the Consumer Protection Act 1986 alleging the deficiency in service on the part of the O.Ps and prays for orders to direct the O.Ps to pay a sum of Rs.11,81,719/- along with interest at the rate of 9% till the date of realization and to grant such other relief as the Forum deems fit.
2. The brief facts of the complaint are that the complainant on 27.1.2014 underwent ultrasound scan at the Bharat Earth Movers Ltd., (BEML) Hospital in KGF, Kolar and the scan revealed presence of fibroids in the uterus, necessitating a total hysterectomy for removal of uterus. It is stated that complainant’s children were living in Bangalore and complainant opted for hysterectomy to be performed in Bangalore by O.P.No.2 in O.P.No.1 hospital. On 10.2.2014 complainant visited O.P.No.1 and O.P.No.2, as advised the complainant that hysterectomy would be performed by laparoscopically. The complainant states that she got hospitalized on 12.02.2014 and total hysterectomy was performed laparoscopically by O.P.No.2 and she was discharged on 14.02.2014 and her stitches were removed on 18.2.2014. It is stated that post operatively the complainant suffered pain and had facing difficulty in passing of urine and when she complained of such difficulty to O.p.No.2 she was told that hysterectomy in associated with some trauma to the areas near ureters and urinary bladders and the pain and difficulty in passing of urine would subside as the trauma reduces. It is stated that after six days of the hysterectomy she was catheterized on 20.02.2014 and was able to pass urine through the catheter. However on 22.02.2014 urine started to dribble out from vagina uncontrollably. And O.p.No.2 informed that drippling was normal considering she had not urinated for last few days and that would subsidies soon and advised the complainant to be on diapers. Urine continued dribbling uncontrollably and during this period complainant was completely bed ridden.
3. Complainant states that dribbling of urine did not subside despite O.p.No.2 assurance and O.P.No.2 advise the complainant to consult a urologist and O.P.No.2 referred the complainant to a Urologist at Chinmaya Mission Hospital, Indiranagar, Bangalore. On detailed examination by the urologist at CMH hospital the complainant and her family members learnt that the injury was on account of gross negligence and carelessness exhibited by the O.P.No.2 during the performance of the hysterectomy. During the course of surgery the complainant had sustained a severe uretric injury on her left ureter as no care was taken to identify her uterus before clamping the uterin artery prior to hysterectomy/ applying the anti-coagulation scissors. A careless application of clamps/ scissors/ sutures by the O.P.No.2 resulted in a partial tear of complainant’s lower left ureter. Hence alleged that there was deficiency of service on the part of the O.p.No.2 failing to assess ureteric integrity intra-operative upon performing hysterectomy. No cystoscopy was performed intra operatively to ascertain the integrity of the complainant’s ureters before concluding the surgery. As a result, not only did the complainant sustain the injury, such injury was not diagnosed at the earliest point of time which is intra operatively. Thereafter complainant had to undergo two surgery at M.S. Ramaiah Hospital one on 10.3.2014 for double J stenting of her injured left ureter and subsequently, a ureteroneocystostomy on 26.03.2014 for re-insertion of her torn ureter into her urinary bladder. For which she spent about Rs.2,00,000/- towards surgical treatment/ repair of her ureteric injury. Her urinary tract infection and dysuria continued unabated even till today. Complainant suffers immense pain, mental agony and monetary loss on account of gross negligence of O.P.No.2. complainant issued legal notice to O.Ps demanding compensation towards negligence and deficient service, but the O.Ps failed to comply demand made in the legal notice. Hence this complaint.
4. Upon issuance of notice O.P No.1 and 2, O.Ps appeared through their counsel and filed their version. In the version it is contended that the complaint is false, frivolous and vexatious and not maintainable either in the law or on facts. O.Ps contended that, complainant approached O.Ps in the first week of 2014 with the complaint of heavy periods since six months and low hemoglobin and had scan report done in another center which showed large uterus fibroid. It is contended that as the complainant wanted to avoid open surgery for removal of uterus so she approached O.p.No.2 as he is experience in laproscopic uterus surgery. It is admitted that, O.P.No.2 performed laproscopic hysterectomy on 12.02.2014 and with due care during surgery and all known standard procedures to avoid ureteric bladder injury was followed. There was no deficiency in service or negligence of any kind by O.Ps. O.Ps denied that there was any carelessness application of clamps / sutures by the O.P.No.2 and such carelessness resulted in partial tear of the complainants lower left ureter. Thermal energy (Bipolar) instrument was used thereby avoiding clipping as in clipping there is a higher chance of injury. The entire surgery has been recorded and the same was handed over to the complainant which shows that all the necessary measures have been taken while performing the surgery. Further O.Ps contended that prior to the surgery O.P.No.2 had explained to the complainant how the procedure will be done and also to known complication of the laproscopic surgery. Complainant had been advised that known complications were bladder / ureter injury and bleeding. The complainant knowing complications preferred minimal invasive surgery and preferred that her uterus be removed by way of laproscopy.
5. Further O.Ps contended that complainant was totally fine postoperatively and therefore was discharged next day. And complainant visited O.P.No.2 after seven days for suture removal. During the gap of seven days the complainant never mentioned that she had any problem of dribbling of urine or passing of urine or any other complaint. It is only on 16th or 17th day of post operation on telephone the complainant informed the O.Ps that she had dribbling of urine. Immediately O.P.No.2 suspecting some problem with the Ureter or bladder suggested complainant visit him or show it to near urologist. OP No.2 contended that, he has followed standard procedure to avoid ureteric and bladder injury. The surgery conducted by O.P.No.2 was routine, it was considered unnecessary to do a hysteroscopy which is not done as standard procedure and as a seasoned surgeon O.P.No.2 followed all known procedures and cystoscopy was not usually done in cases such as the complainant. Therefore, it is not correct to claim that deliver to conduct cystoscopy is negligence or deficiency of service. O.Ps deny that they are liable for due to complainant any sum of money. Hence O.Ps denying all other allegation made in the complaint and prays for dismissal of the complaint.
6. In order to substantiate the case of the parties and both parties have filed their affidavit evidence and also heard the arguments.
7. On the basis of the pleading of the parties, the following points will arise for our consideration is:-
(A) Whether the complainant has proved
deficiency in service on the part of the O.Ps?
(B) Whether the complainant is entitled to
the relief prayed for in the complaint?
(C) What order?
8. Our answers to the above points are:-
POINT (A) & (B): In the Negative.
POINT (C): As per the final order
for the following:
REASONS
POINT No. (A) & (B):-
9. On perusal of the pleadings of the parties, it is not in dispute that, that the complainant underwent laproscopic surgery conducted by the O.P.No.2 in the O.p.No.1 hospital. The sole allegation of the complainant is that post operatively the complainant suffered pain in the uterus area and alleged that due to negligence of the O.P.No.2 doctor and hence complainant was having severe pain and difficulty in passage of urine resulting in uretric injury on her left ureter. As a result of which complainant undergone two surgeries in M.S.Ramaih hospital on 1.3.2014 for double J stenting of her injured left ureter and subsequently a ureter into her urinary bladder. She has already spent close to Rs.2,00,000/- towards surgical treatment/repair of her ureteric injury. Her urinary tract infect and dysuria continue unabated even till this day.
10. Per-contra O.Ps contended that prior to conducting the operation complainant approached the O.Ps with the history that she had heavy periods since six months and low hemoglobin. Further contended that with all due care and by following all medical protocol standard conducted the laparoscopic hysterectomy on 12.02.2014 and there is no deficiency or negligence in conducting the said laproscopic hystoractomy.
11. The crux of the matter is to consider whether the O.Ps are negligent in performing the laparoscopic hysterectomy. In order to prove the case of the parties and both parties filed their affidavit evidence. However the CD filed relating operation and on viewing the same we come to know that the surgery almost includes some perils, for which doctors will put their efforts in removing the problems, but it cannot be presume that any surgery not involves any complications. Whereas every surgery includes complications only. Therefore, viewing from the CD produced by the O.P.No.2 in support of his evidence we cannot notice any negligence and to decide that the O.P No.2 doctor committed any negligence. Further on perusal of the CD we cannot apply the principle of res ipsa loquitur and will not arise after cross examine the O.P.No.2.
12. On perusing the cross examination of Dr.Manjunath who deposed that he has been experience since 2017 and working in various hospitals including the O.P.No.2 hospital and he has conducted more than 1200 hysterectomies surgeries also more than 8000 to 9000 laparoscopic surgeries. These evidence clearly reveals that O.P.No.2 doctor is experienced in the field. Further the detailed of the surgery is also elucidated in the cross-examination and the O.P.No.2 deposed that while conducting the laparoscopic hysterectomy there is a chances of ureteric injury when coagulation of the first segment is done, at the coagulation of the uterine arteries and also while coagulating the third attachment and he has taken sufficient care to prevent ureteric injury while handling the cases. On perusal of the cross-examination in its entirety, the complainant in any way did not demolish the evidence given by the O.P.No.2.
13. It is worth to note that the complainant alleged that in her complaint para No.8 it is stated that only upon detailed examination by the urologist by the CMH hospital that the complainant and family learnt about the injury that she sustained in question, however, in order to support the case of the complainant did not examine any authority of the Thinmay Mission Hospital that the O.P.No.2 is at gross negligence and carelessly conducted the laparoscopic hysterectomy. In the absence of the any credible evidence we cannot reached to the conclusion that O.P.No.2 is negligently performed the laparoscopic hysterectomy.
14. It is worth to note that the complainant did not denied the fact earlier she approached the O.Ps with the history of heavy periods six months and low hemoglobin. Further she had approached with a scan report done with another center which showed a large uterus fibroid.
15. Furthermore, on perusal of the order sheet it also discloses that, on 12.05.2016 during the course of proceedings advocate for O.P No.2 filed an application with supporting affidavit praying to stay the proceedings till disposal of the case before the Karnataka Medical Council. It is pertinent to note that the matter being old and the prayer is denied to expedite the matter. Accordingly complainant cross-examined the O.P.No.2 doctor but nothing is elicited in order to demonstrate that O.P.No.2 is deficient in their service. Furthermore the O.Ps relied on the decision of the Hon’ble National Commission decided in the case of Md.Abbas Ansari Vs Dr.Rameshwar Pd. Agarwal decided on 18 January 2007. On perusal of the above judgment the ratio of the above judgment is aptly applicable to the case on hand and ultimately the Hon’ble National Commission held that the Opposite Party doctor adopted the acceptable medical text treatment and discharged the patient without any complaints or complications. It is note worthy to mention that as per the evidence placed on record subsequent to laparoscopic hysterectomy conducted by the O.P.No.2 doctor complainant is discharged with no complaints or complications and after a week once again she has approached the O.p.N.2 doctor for removal of stitches even then also there is no solid evidence to show that the complainant suffered any complications or complaints. Hence the allegations of the complainant is lame of strength and holds no water. The O.P.No.2 referred many decisions in support of their case, but on going through the entire evidence on record we are of the considered opinion that complainant proved deficiency in service on the part of the O.Ps and hence complainant is not entitled for any relief as sought in the complaint. Accordingly, we answered the Points (A) and (B) in the Negative.
POINT No. (C):
16. On the basis of answering the Points (A) & (B) in the Negative, we proceed to pass the following:-
ORDER
1. The complaint hereby is dismissed. No order as to cost.
2. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 21th Day of September 2017)
MEMBER MEMBER PRESIDENT
