CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN

CASE NO.CC/286/15

          Date of Institution:-    09.07.2015

          Order Reserved on:- 06.05.2024

                       Date of Decision:-      18.11.2024

IN THE MATTER OF:

Mrs.PawanKumari

H. No. 100-J-Block,

Dharampura, Najafgarh,

New Delhi - 110043                           

.….. Complainant

VERSUS

1. Rockland Hospital

Sec-12, HAF-B, Phase-1,

Dwarka, New Delhi – 110075

2. Rockland Hospital Limited

B-33-34, Qutub Institutional Area

New Delhi - 110016

3. Dr.NutanYadav

161 AbhiyanApartment

Sec-12, Dwarka, New Delhi

.…..Opposite Parties

ORDER

Per Dr.HarshaliKaur, Member

1. The complainant, having a cyst in her left ovary, was getting treatment for the same from OP-1. She was admitted to OP-1 on 27.08.2014 with the complaint of bleeding P/V (per vaginal) and discharged after treatment. Annexure-A (Colly) is the discharge summary issued by OP-1.The complainant was again admitted on 02.09.2014 and discharged on 04.09.2014 for the same issue. Annexure-B (Colly) is the discharge summary issued by OP-1 for her hospitalisation at this time.

2. After her surgery, the complainant alleges that she started bleeding per vagina for one month post–TAH with BSO(Total Abdominal Hysterectomy (TAH) with Bilateral Salpingo-oophorectomy (BSO) under spinal anaesthesia conducted on 02.09.2014. Since October 2014, urine would continuously leak, and she developed voiding per urethra.

3. The complainant states that she approached OP-2, her treating Doctor, but was assured that everything was fine and she would recover in due time. OP-2 emphatically denied that this continued urine seepage had nothing to do with the surgery done to remove the cyst.

4. Despite waiting patiently, when the complainant's situation deteriorated, and she was unable to perform her daily functions as she was bedridden, she consulted RML urology OPD and underwent several tests on their advice. Annexure-C (Colly)are the copies of the test reports annexed with the complaint.

5. She thereafter went to Medanta Global Health Pvt. Ltd. And was admitted on 20.11.2014 for cystoscopy and vaginoscopy under GA. She was treated and discharged with medication on the same day. On 08.12.2014, she was admitted for treatment and discharged on 12.12.2014. She states that she is recovered now after the treatment. Annexure-D (Colly) is the copy of the Discharge summary issued by Medanta for her treatment.

6. Hence, alleging deficiency in service, unfair trade practice and negligence on the part of the OPs, the complainant filed the present complaint under section 12 of the Consumer Protection Act, 1986, seeking directions to the OPs to pay her Rs.1,98,000/- along with interest @18% p.a. till realisation and compensation for the mental and physical pain, agony and trauma to the tune of Rs.8 lakh and OP-2 to pay her Rs.5 lakh as compensation for her negligence.

7. On notice, OP-1 and OP-2 filed their individual replies. OP-1 denied any deficiency in service or unfair trade practice, stating that the complainant's surgery was performed by a team of two experienced gynaecologists and an experienced anaesthetic as per standard guidelines, which was successful and without any complications. The complainant was suffering from Dysfunctional Uterus Bleeding (DUB). She underwent S& E (suction and evacuation) under General Anaesthetic (GA) on 27.08.2014. She was discharged in a satisfactory state as per standard protocol since the complainant's post-operative condition was normal. Appropriate medication was also prescribed.

8. The complainant was recovering until 11.09.2014,when she came for a follow-up visit. Since no evidence of any complication was noticed or seen, the complainant was advised only medication. Thereafter, the complainant did not follow up with OP-2.Hence, the complainant is responsible for her issue as she did not follow the advice given at discharge,and therefore, the claim deserves dismissal.

9. OP-2, in her reply, denied the averments of the complainant, stating that they were false and baseless and that no negligence could be attributed to her in this case, which was devoid of merit.

10. The complainant filed rejoinder to the replies of OP-1 & 2 and her affidavit in evidence reiterating the averments made in her complaint. OP-1 filed the affidavit of Ms.Himanshi Gupta, Senior Manager, Administration of OP-1, and OP-2 filed her own affidavit to read as evidence. Both OPs repeated the statements made in their respective replies. All the contesting parties filed their written arguments.

11. At this stage, the Forum felt it prudent to send medical records for a medical expert opinion to the CMO SafdarjungHospital. The medical expert opinion dated 20.08.2018 was received by the Forum on 24.09.2018, which opined as below:

12. The complainant filed an objection to the medical report, after which the case was fixed for final oral arguments. We have heard the husband of the complainant and Ld. counsels for the OPs.

13. Having carefully gone through the facts and circumstances of the present complaint and perusingthe documents proved on record by the contesting parties, we find that the complainant was under the treatment of OP-2, the treating Doctor at OP-1 hospital. On 27.08.2014, she was diagnosed with Dysfunctional Uterine Bleeding (DUB), and OP-2 performed suction and evacuation (S & E) under general Anaesthesia, discharging her on the same day after prescribing medicines for post-surgery management (Annexure-A). She was asked to return for review in the Gynaecology OPD.

14. On02.09.2014 i.e., after 5 days, the complainant was readmitted to OP-1 Hospital under OP-2, who was the Dr.Incharge with complaints of bleeding P/V again. She was diagnosedas an Endometrial Hypoplasia with a Left ovarian cyst. OP-2 performed a Total Abdominal Hysterectomy (TAH- Hysterectomy surgery done to remove the uterus and cervix through an abdominal incision) with Bilateral Salpingo-oophorectomy (BSO- surgery done to remove both the ovaries and fallopian tubes) under spinal anaesthesia (SA) on 02.09.2014, after which she was discharged on 04.09.2014. The complainant was discharged on medication and in stable conditionand asked to visit after 7 days in GynaeOPD as per Annexure-B, the copy of the discharge summary dated 04.09.2014.

15. The complainant visited OP-2 on 11.09.2014 at OP-1 Hospital and complained of blood Per Vaginal while urination. Her Histo Pathology Examination (HPE) mentioned chronic urethritis with squamous metaplasia,which is inflammation of the urethra with benign non-cancerous change of surface lining, which may be caused by trauma, as per medical journals. The complainant was prescribed medications but was not made aware of the complication or the reasons for the leakage of urine by recording it as a complication on the prescription issued on the day for reasons best known to OP-2.

16. She was referred to Dr.ShaliniChaudhary by OP-2 on 16.09.2014, where more medication was advised. She returned on 18.09.2014 for another review with Dr.Shalini. The complainant again visited OP-2 on 25.09.2014 with spotted bleeding during micturition and was still on conservative treatment. She was again referred to yet another doctor i.e. YogitaParashar but her complaint of spotting did not get resolved till 15.10.2014, when she was finally asked to seek a review with a urologist. Shewas again called for review on 18.10.2014 with Dr.YogitaParashar and, after prescribing medication,she was asked to return after one week. The complainant has annexed the prescription slips from 04.09.2014 to 18.10.2014 as Annexure-B.

17. The complainant,having lost faith and undoubtedly undergoing severe physical discomfort, consulted with a Urologist at RML hospital. The treating Doctor at RML Hospital recorded in the notes copy that the complainant has annexed with her complaint as Annexure-C (Colly), stating therein that the complainant had undergone the TAH with BSO on 02.09.2014. Following the procedure, the complainant had bleeding PV and passing clots postoperatively and now has complaints of leakage of urine per vagina, which increases on standing/walking/exertion. She was advised several tests, and treatment plan was noted as cystoscopy and vaginoscopy to rule out VVF (Vesico Vaginal Fistula).

18. On 06.11.2014, after her tests were complete, the treating doctors at RMLHospital advised her (Robotic Assisted Laparoscopic TransvaginalVesico-Vaginal Fistula Repair from CGHS approved centre). The complainant was under the treatment of RML Hospital till 03.12.2014 and chose to get the fistula repair done in Medanta.

19. The complainant wasadmitted to Medanta Hospital on 20.11.2014, where confirmation of VesicoVaginal Fistula was done. Her presenting complaints were noted as below in the Discharge summary generated by Medanta Hospital, a copy of which is annexed asAnnexure-D with the complaint.

Medical History& Presenting Complaints:-

Mrs.PawanKumari, 43 years old lady, presented with complaints of bleeding per vagina for 1 month, post TAH with BSO (done on 02.09.2014), since October 2014 she has urine leak per vagina, continuous leak, Voiding per urethra.

The complainant was discharged after the treatment in stable condition.

20. OPs 1 & 2 have denied any deficiency in service on their part, stating that the complainant, herself, did not follow the advice on discharge after the surgery. Further, the complainant did not visit OP-1 or OP-2 for follow-up after 11.09.2014 after getting discharged on 27.08.2014. Until then, she was under the treatment of OP-2 with no signs or evidence of complications. OP-2 simply denied deficient service on her part.

21. Though both OPs have denied any liability in the instant case, they have, however, not placed on record any documents to corroborate their testimonies in the form of medical records, surgery notes, OPD notes or test results to show that the complainant was not suffering from any complications till 11.09.2014 when she visited OP-2 at OP-1 for a review and follow up. Neither have the OPs filed a copy of the consent form to clarify that the complainant was made aware of the complications and risks of opting for the procedure.
22. A bare perusal of the prescriptions sheets annexed with the complaint by the complainant as Annexure-B (Colly) falsifies the OPs statement that the complainant was not suffering from any complication. When the complainant visited OP-2 at OP-1 on 11.09.2014 after discharge on 04.09.2014, complaining of Blood Per Vagina, OP-2 referred her to the other doctors on 16.09.2014, where the complainant visited on several dates on 18.09.2014, 15.10.2014 & 18.10.2014 for further tests and investigations. If the complainant had been stable and did not suffer from any complications, there would have been no reason to keep getting tests and conducting investigations on the aforementioned dates.

23. When her issue remained unresolved, the complainant approached RML Hospital, where it was noted that she was suffering from Blood PV and leakage of urine per vagina. Later on, it was confirmed that she had a Vesico-Vaginal Fistula,which she got repaired at Medanta(Annexure-D).

24. In our view, OP-2, the treating Doctor at the OP-1 hospital, made treatment decisions that are globally accepted, and the complainant was treated with due care and caution as per the standard medical procedure, keeping in view her past medical history and condition. This case also squarely falls within the ambit of the landmark judgment of the Hon'ble Supreme Court in Jacob Mathew Vs. State of Punjab, reported as 2005(6) SCC 1 held wherein it is held-

No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res Ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counterproductive. Simply because a patient has not favorably responded to a treatment given by a physician or a surgery has failed, the Doctor cannot be held liable per se by applying the doctrine of res Ipsa loquitur.

2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

Similarly, the judgement of the Hon'ble Supreme Court in Martin F. D'Souza Vs. MohdIshfaq, reported as 167 (2009) DLT 391 (SC) also held-

47. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the Doctor cannot be held straightway liable for medical negligence by applying the doctrine of res Ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.

25. As far as the Expert Report sent by the Addl. M.S. of Safdarjung Hospital dated 02.08.2018, the expert Board was convened by the Hospital, and the complainant’s records were evaluated. The board of doctors is made up of experts in the fields of uro-oncology & robotic surgery and obstetrics&gynaecology,has not clearly given a clean chit to OP-2 and has only vaguely opined that the complainant developed leaking of urine after one week of Hysterectomy. On follow-up at OP-1,she was referred to aUrologist who advised cystoscopy. However, the complainant went to RML and B.L. Kapoor and got operated for vasico-vaginal fistula at Medanta, which is a known complication of abdominal hysterectomy.

26. Further, the Indian Journal of Urology clarifies as below:-

VVF following hysterectomy is most likely to arise from an unrecognized bladder injury at the time of surgery, which results in the formation of aurinoma. Urine will then follow the path of least resistance and drain through the vaginal cuff suture line. A mucosa-lined tract will then establish between the bladder and the vagina. A second possible mechanism is pressure necrosis from incorrectly placed sutures between the vaginal cuff and posterior bladder. Hematoma and infection are often complicating factors.

27. Also, as per the International Journal of Reproduction, Contraception, Obstetrics and Gynaecology-

Bladder   injury   is   one   of   the   intra-operative complications of  TLH  and  if  undiagnosed  can  develop post-operative vesicovaginal fistulas(VVF). The bladder injuries   after   hysterectomies   can   be   detected   if   a cystoscopy is performed at the end of surgery.

28. Hence, we cannot understand why, despite knowing that VVF is a complication of Hysterectomy, OP-2 did not immediately check for the same as soon as the complainant presented with aurine-related issue. The delay would indeed have amplified the complainant's suffering and caused her mental agony, pain, and harassment.

29. This is the main crux of the matter wherein the complainant, after getting the procedure done from OP-2, came to the treating Doctor but was not satisfied with the delay and opacity of OP-2 and lost all trust in her and OP-1 to give her safe treatment. In our view, the fact that she chose to seek advice and treatment from another hospital speaks volumes of the faith and trust she lost in OP-1 and OP-2. 

30. From the documents relied upon by the complainant that remain undisputed by the OPs, we come to the irresistible conclusion that during the TAH surgery of the complainant on 02.09.2014, her bladder was damaged. The complainant complained of blood per vagina and leakage of urine, as noted by OP-2 when she came for the follow-up visit post-surgery on 11.9.2014. The complainant was not informed about the development of the complication even till 18.10.2014, i.e. for more than one month while she was referred to different doctors at OP-1.

31. VVF was detected by the doctors at RML Hospital; when having lost faith in OP-1 and OP-2, the complainant went to seek advice from said Hospital, and the treating doctors at RML conducted tests to rule out VVF.

32. We are not in doubt of the medical acumen of OP-2 or that she did not act in the best interest of the complainant. Therefore, though we do not find that OP-2 is guilty of medical negligence and intentionally causing harm or injury to the complainant.

33. However, despite knowing that a complication that would surely cause significant mental, physical pain OP-2 chose to keep delaying active treatment for the same. She could have been vigilant regarding the bleeding and leakage of urine that the complainant was repeatedly presenting with despite the passage of one month after the surgery on 04.09.2014 during the follow-up visits since after 1 week of surgery.

34. OP-2 chose not to disclose to the complainant the complication she was suffering from for more than a month and take corrective steps through investigation and treatment plan. Instead,  OP-2 kept on making her run from pillar to post, due to which the complainant would have suffered physical as well as mental trauma for at least the period of 04.09.2014 to 18.10.2014, for which she is entitled to compensation.

35. The Hon’ble State Commission in,  Delhi IVG & Fertility Clinic Vs. LinaGoyalOrs., in IV (2007) CPJ 476, appeal No. 1468 of 2001-decided on 3.4.2007 held that,

16. It is not a case where the operation has not been successful. It is a case where the post care treatment has not been given, due to which respondent suffered immensely for getting treatment from some other hospital. In view of the report of the WHO that there is only success in 25% Dr. Sanjay Patil cannot be held guilty for medical negligence though the appellants were rightly held guilty for deficiency in service in as much as that post care requirement was not provided effectively. The report of the WHO itself shows that subsequent outcome has to be considerably monitored and over the period has been refined shows that post care monitoring is necessary requirement.

17. In the instant case only the appellant hospital or the nursing home have to be held guilty for administrative negligence in respect of lack of post care treatment in not making requisite arrangement in the absence of Dr. Sanjay Patil.

18. Since the insurance company was impleaded as OP No.4 with which the appellants had insured themselves against the medical perils, the first charge for recovery of the awarded amount shall be against the insurance company as the consumer cannot be subjected to multiplicity of litigation as the liability of the insurance company depends upon findings against the hospital and the doctor. If the hospital or doctor has been held guilty for medical negligence or deficiency in service, then the insurance company has to compensate the consumer. Insurance is obtained only to insure that the consumers interests are protected and not that the person who has insured himself will get the amount. The only liability of the insurance company is pay upto the insured amount only and any amount over and above insured amount becomes the liability of the defaulting hospital or the doctor.

19. In the result the appeal is dismissed.

Since we have held the appellants guilty for deficiency in service, the liability to pay the compensation if it is within the insurance amount shall be of the insurance company. The execution shall be filed by the respondent first against the insurance company.

36. Under the circumstances, we are of a similar opinion that no medical negligence can be attributed to O.P-2, who in our view performed the procedure Total Abdominal Hysterectomy (TAH) with Bilateral Salpingo-oophorectomy (BSO) on 02.09.2014, to the best of her ability on the basis of the medical history of the complainant.

37. However, due to the inability of O.P-2 at Op-1 to give proper diagnosis or post-operative care to the Complainant she had to undergo mental agony and physical pain. She approached O.P-2 at OP-1 suffering from post-operative complication of bleeding and continuous urine discharge but could not find any relief and had to seek help from RML Hospital and then Medanta for the repair of the VesicovaginalFistula due to which she would surely have faced hardship and harassment.

38. In light of our discussion above, we come to the irresistible conclusion that the OP-1was guilty of administrative negligence and OP-2 was deficient in service in respect of lack of post-operative care of the complainant, due to which she undoubtedly suffered tremendous physical, mental and financial hardships for which she deserves to be compensated as this casual attitude is tantamount to deficiency in service.

39. Even though her suffering and harassment cannot be estimated in terms of money, we feel that a lumpsum amount of Rs.5,00,000/- in this case, shall serve the ends of justice.Accordingly, allowing the complaint, we direct OP- 1 and 2 to jointly and severally pay to the complainant Rs.5,00,000/- for the mental agony, pain and torture she suffered, along with Rs.15,000/- as litigation cost within 45 days of receipt of this order failing which the OPs shall jointly and severally pay an interest @9% from the date of receipt of a copy of the order till realisation.

• A copy of this order is to be sent to all the parties as per rule.
• File be consigned to record room.
• Announced in the open court on 18.11.2024.