BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSIONAT HYDERABAD.
F.A. 346/2006 against C.D. 902/2000, Dist. Forum-II, Hyderabad
Between:
1. M/s. Amba Hospital
H.No. 10-2-317/4
Vijayanagar Colony, Mallepalli
Hyderabad
Rep. by its Managing Director
2. Dr. Rita Shukla
C/o. Amba Hospital
H.No. 10-2-317/4
Vijayanagar Colony, Mallepalli
Hyderabad
3. Dr. Laxmi,
C/o. Amba Hospital
H.No. 10-2-317/4
Vijayanagar Colony, Mallepalli
Hyderabad *** Appellants/
Ops 1 to 3
And
1. Ramapathi
Retd. Govt. Servant
2. Kumari L. Priyanka
D/o. Late Ganesh Prasad
Age: 7 years, Rep. by Guardian
Smt. Kavitha, W/o. Ramapathi
3. Kumari L. Namratha
D/o. Late Ganesh Prasad
Age: 5 years, Rep. by Guardian
Smt. Kavitha, W/o. Ramapathi
All are R/o. H. No. 6-3-19,
Pochammawada, Jagtial
Karimnagar Dist.-505 327 *** Respondents/
Complainants
4. Bibi General Hospital & Cancer Centre
16-3-991/1/C, Govt. Printing Press Road
Malakpet Road, Hyderabad
5. Dr. Shakila Faiz Banu
Formerly working in
Bibi General Hospital & Cancer Centre
Malakpet, Hyderabad
Now working at Owaisi Hospital
Kanchanbagh, Saidabad, Hyderabad *** Respondents/
Ops 4 & 5.
Counsel for the Appellants: : Mr. Abhinand K. Shavili
Counsel for the Resp: : PIP (R1 to R3)
.
QUORUM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
SMT. M. SHREESHA, MEMBER
&
SRI G. BHOOPATHY REDDY, MEMBER
TUESDAY, THIS THE TWELFTH DAY OF AUGUST TWO THOUSAND EIGHT
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
This is an appeal preferred by the opposite parties 1 to 3 against the order of the Dist. Forum in granting compensation for medical negligence.
The case of the complainants in brief is that Smt. Shanti aged about 25 years is the daughter of first complainant and mother of second and third complainants. While so, Smt. Shanti was brought to R1, Amba Hospital with heavy bleeding on 7.5.1998. On 9.5.1998 R2 and R3 performed hysterectomy operation without conducting any tests. Later when they could know that Smt. Shanti had cancer R1 to R3 advised to admit her in R4 Bibi General Hospital & Cancer Centre where they gave radiation treatment for about 25 days. Due to removal of uterus as well as radiation treatment her kidneys were damaged. Dr. Srinivasa Rao, M.D., Radiologist after examining Smt. Shanti confirmed that kidneys were damaged due to radiation treatment. Dr. Riaz, M.S. refused to treat her since the kidneys were damaged beyond repair and opined that the death would occur at any time. Later when she was brought back to R4, he referred her to Dr. Ravi Varma, M.D. Radiologist, Yashoda Hospital who in turn referred her to Dr. Aruna, M.D. Nephrologist, Yashoda Hospital. She opined that Smt. Shanthi would not survive for more than two or three months. When she was referred to Dr. Rauf, Kidney Specialist. He, on examining her opined that both the kidneys have failed. She died on 31.10.1999. All this was due to negligence of the respondents. R1 to R3 could not have conducted the hysterectomy operation without getting the biopsy report. R4 & R5 gave radiation treatment, due to which the kidneys were failed and ultimately died. When they gave notice, they did not choose to give any reply. Since 1st complainant is the maternal grand father and guardian of minors, entitled to claim compensation of Rs. 4,50,000/-.
Opposite Parties 1 to 3 filed, separate counters however taking the very same contentions. While mentioning their educational qualifications, and the fact that they have obtained FRCS from Glasgow University admitted that Smt. Shanti was brought to their hospital on 7.5.1998 by her maternal grand mother and Smt. Vidya Devi when she was profusely bleeding from vagina. She was also passing blood clot from vagina and was having high fever with chills and rigors . These facts were mentioned in the case sheet. On clinical examination it was found that she was running 103F temperature, and the B.P. was 90/60. Speculum examination of vagina revealed profuse bleeding and clots in the vagina. There was hemangimatous polyploid lesion in the cervical opening, posterior lip of the cervix was infected and bleeding profusely. After clinical examination necessary investigations like urine examination, complete blood picture, chest x-ray, ultra sonography scan of abdomen and pelvis were made. Antibiotics were administered, since she was anaemic and pale, blood transfusion was made. Therefore, she was treated for two days in conventional method. When the vaginal pack was removed, she started continuously bleeding and a provisional diagnosis of hemangimatous polyploid lesion of the posterior lip of cervix was made. A biopsy was attempted in the operation theatre for conducting abdominal hysterectomy. In view of the critical condition of the patient, R2 has consulted R3, a General Surgeon for conducting abdominal hysterectomy. The same was informed to the maternal grand parents and obtained their informed consent. After the serious condition of the patient and the consequences thereof was informed to the attendants of the patient and then only abdominal hysterectomy was conducted on 9.5.1998. It went off uneventfully without any complications and the uterus was successfully removed. It was sent for histopathological examination. Post operative care was also went off smoothly. She was passing urine , and taking oral diet. Sutures were removed on the 7th day.
When the patient’s condition was good she was discharged on 16.5.1998. Evidently, she died 1-1/2 years after the operation. The said operation was conducted in order to save the life of the patient in view of profuse bleeding. There was no alternative except performing the operation to save her life. In fact she had already undergone tubectomy about five years ago.
When the histopathological report indicated cancer arising from the endocervical gland without any infiltration into the stroma they advised her to consult an Oncologist for opinion. They learnt that she took treatment in R4 Bibi Cancer hospital. The kidneys of the patient were in perfect condition before commencement of radiation therapy. Kidneys could not have been damaged due to hysterectomy operation. When she has survived for 1-1/2 years, it cannot be said that her kidneys had failed due to hysterectomy operation. Had kidneys were damaged due to hysterectomy operation, she would not have passed urine normally after removal of urinary catheter within 24 hours of the operation. No complications, whatsoever, was observed after the operation. When the complainants allege that the kidneys were damaged due to radiation therapy they should not be find fault for the hysterectomy operation conducted by them. As per medical authority when the carcinoma of cervix is found, removal of uterus is recommended. Since there was no negligence on their part they prayed for dismissal of the complaint.
R4 & R5 filed separate counters, however, taking the very same pleas denying the averments of negligence against them. The allegation that due to radiation treatment the kidneys of Smt. Shanti was damaged is false. When she was brought to them, her condition was serious. They have treated her with care and caution. When they originally refused to admit her, but due to persistent requests and on humanitarian grounds, they admitted her and gave adequate treatment. The radiation field does not include the kidneys.
It was due to metastases, according to Ultrasonographic report of Sidharatha Diagnostics dt. 17.8.1999. Ultra sound report of Yashoda Hospital Dt. 22.10.1999 shows that the patient had developed as-cites and bilateral pleural effusion due to metastases. The radiation treatment would not cause any damage to the kidneys. One year after radiation she died. Therefore, they prayed for dismissal of the complaint with exemplary costs.
The complainants in proof of their case filed affidavit evidence and Exs. A1 to A29, while the respondents filed Exs. B1 to B5. The Dist. Forum after considering the evidence placed on record opined that Hysterectomy operation was conducted without biopsy test and the test was conducted 10 days after the operation. It revealed that she had cancer. This amounts to deficiency in service. The operation could have been conducted only after confirming that the patient was not having carcinoma. It also opined that due to radiation, the kidneys were failed and therefore all of them were guilty of medical negligence. Therefore, awarded a compensation of Rs. 1,00,000/- and Rs. 1,000/- towards costs against all of them.
Aggrieved by the said decision while the R1 to R3 filed F.A. 346/2006 and R4 & R5 filed F.A. 341/2006 contending that the Dist. Forum did not appreciate either the law or facts in correct perspective. When there is no deficiency in service or negligence on their part, compensation could not have been awarded.
Before discussing the merits of the case, we may state herein that R4 & R5 had compromised on settling the matter with the complainants and accordingly, the appeal F.A. 341/2006 was dismissed as adjusted out of court.
Therefore, appeal No. F.A. 346/2006 remains for consideration.
Admittedly Smt. Shanti aged about 25 years was admitted in the hospital of appellants on 7.5.1998 with heavy bleeding. R2 Dr. Rita Shukla, Gynaecologist having observed that the patient was profusely bleeding since last 20 days and running higher temperature and was weak, after conducting tests explained the seriousness of the patients to the attendants i.e., maternal grand mother and aunt of the patient conducted hysterectomy operation on 9.5.1998. Later the biopsy report revealed that she had carcinoma. The main contention of the complainant is that when abnormal bleeding has been noticed, without getting the biopsy report, they ought not to have performed the hysterectomy operation. It is obligatory on the part of the doctor to exclude malignancy before conducting hysterectomy. R2 & R3 had not excluded the malignancy of carcinoma of crevixs. They ought not have performed hysterectomy in the first instance, in fact, that led to unnecessary radiation therapy with R4 & R5 which ultimately led to her death.
The question is whether the appellants R2 & R3 did not take all precautions before conducting the hysterectomy operation, and whether there was any negligence on their part?
It is an undisputed fact that Smt. Shanti aged about 25 years was admitted in the appellant’s hospital on 7.5.1998 with heavy bleeding. Obviously they could not contain the bleeding, the appellants thought of performing hysterectomy. Then she was referred to Alekhya Scanning Centre. On investigation there was a positive finding “ advised to rule out Enteric Fever or Carcinoma Cervix” Even in Ex. A2 itself in the coloumn name of the patient and the doctor referred by there was a mention CL. Note : ‘to rule out malignancy’. Evidently even before receipt of any report, hysterectomy was conducted. Ex. A8 biopsy report of the hysterectomy specimen shows that “more favour of carcinoma arisen from the endocervical gland without any infiltration into the stroma” Endometrium : Shows prolifterative phase
Myometrium : No significant change
Ovary : Shows corpus leuteum.
She was discharged on 16.5.1998. Obviously after receipt of biopsy report on 26.5.1998, the appellants having observed carcinoma from the endocervical gland without any infiltration into stroma, referred her to cancer hospital for further management. The doctors at R4 thereupon treated it with radiation, and in the process her kidneys were failed, and ultimately led to her death on 31.10.1999. The appellant doctors who conducted the hysterectomy contended that there was no negligence on their part when they conducted the hysterectomy operation.
When Smt. Shanti was admitted in the hospital, the condition of the patient was not such bad that she was unable to understand or appreciate the pros and cons of removal of uterus. The complaint was that there was profuse bleeding for the last 20 days, and she was suffering from fever with chills and rigors for the last five days. Admittedly, the consent for total hysterectomy was not taken from the patient. The consent of her grand mother and aunt was taken, as they had accompanied the patient to the hospital. There was no mention that she was unconscious nor unable to appreciate the consequences of hysterectomy. No reason was assigned for not taking consent from her. As we have earlier pointed out that she was in a position to understand the repercussions of total hysterectomy.
In a recent judgement the Hon’ble Supreme Court in Samira Kohli Vs. Dr. Prabha Manchanda & Another reported in (2008) 2 SCC 1 summarised the principles relating to ‘consent’ as follows :
(i) A doctor has to seek and secure the consent of the patient before commencing a ’treatment’ (the term ’treatment’ includes surgery also). The consent so obtained should be real and valid, which means that : the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
(ii) The ’adequate information’ to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available;
