This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that complainant was under the medical care and guidance of the OP2, a gynecologist, for a substantial duration prior to her first delivery and complainant followed all instructions given by the OP2 and collected medical test report from the laboratories and pathologies preferred to by OP2 including admission in the OP1 Nursing Home as per direction of the OP2.
Practically, the complainant expected for normal delivery and accordingly on 30-08-2013 complainant was admitted in the OP1’s nursing home under the medical supervision and advice of the OPs2 and 3 with a hope for normal delivery but complainant was told that OP3 is also a gynecologist and assists the OP2. However, on that day the OP2 informed her family members that normal delivery is not possible and, as such, they would take a surgical procedure of delivery of child. In the evening of 30-08-2013 the OP2 assisted by the OP3 carried out the surgical procedure in the OT of the OP1 and at about 6:09 p.m. complainant gave birth to a female child with surgical intervention made by OPs2 and 3 and they informed the complainant and her family that the surgery was successfully done without any complications and medical reports and certificate showing birth of a female child issued on 30-08-2013 at the OP1’s Nursing Home.
After operation complainant was kept observation on the following two days and was discharged on 02-09-2013 with the direction to visit the OP3 on 09-09-2013 in the Nursing Home for removal of stitch and further checking and was also advised to visit in the chamber of OP2 after 6 weeks or in the case of emergency. On 09-09-2013 complainant visited the chamber of the OP3 at the Nursing Home and informed her about pain in her lower abdomen when she prescribed for blood test, urine test and medicines for relief from pain. The complainant underwent medical tests and started taking medicines prescribed by the OP3 but when the complainant did not get any relief then she visited the chamber of OP2 on 17-09-2013 when OP2 did not take her problem seriously and instead of going for a thorough check up advised the complainant to continue the medicines prescribed by the OP3 and also prescribed further additional medicines and on that day the OP2 told the complainant that she would be going out of India for a couple of months to meet her relatives during which period the OP3 would be responsible for her treatment and she should follow the instructions and advice of the OP3. But even after taking such medicines as per advice of the OPs2 and 3 complainant did not feel any relief in respect of his pain on the lower abdomen. But day to day the pain in the lower abdomen began to increase and even complainant did not sleep during night hours and also for that reason she failed to take care of new born baby and ultimately the pain was so unbearable that she felt like taking her own life rather than suffering such immense pain and complainant was helpless without any clue. Complainant was totally dependent upon her doctors being the Pos2 and 3 and invariably she did nothing more than following the advice of her doctors but relief was not provided by such medicines or treatment made by OPs2 and 3. Subsequently, on 23-09-2013 complainant again visited the chamber of OP2 when she came to learn that OP2 already left India and OP3 looked after the patients of the OP2. At that time complainant narrated her entire sufferings to the OP3. She advised the complainant more medicines and asked the complainant for USG of whole abdomen from a particular laboratory to exclude any pathology and accordingly, complainant followed the instruction of the OP3 and obtained USG report on 25-09-2013 and in the said report indicated the existence of a well defined solid SOL with prominent internal calcification in right adnexa extending into right iliac fossa but the complainant was not medically competent to understand the meaning of such observations. Subsequently, complainant wanted to show the USG Report to the OP3 immediately and she went to meet the OP3 with USG report but she was told that she would be available from 30-09-2013 onwards at the OP1 Nursing Home and the complainant knows as to how she survived those four days of her life waiting for her doctor and eventually complainant visited the OP3 on 30th September, 2013 and showed her the USG report. OP3 told the complainant that there was nothing adverse in the report and suggested a few more tests and prescribed aw few other medicines. The complainant had no option but to follow the advice of her doctor but the complainant’s condition became bad to worse. Pain in her lower abdomen became intolerable. The entire family of the complainant was disturbed so complainant was again taken to OP3 on 02-10-2013 where she explained her condition to the OP3 and she prescribed further pain killers fully knowing that pain killers were unable to reduce the pains of the complainant and she was required to do some other treatment for getting relief but the OP3 did nothing. In the mean time, on 03-10-2013 complainant fell unconscious due to acute pain on her abdomen and her family members decided to consult with another doctor and on 04-10-2013 complainant consulted with another gynecologist, Dr. Nabanita Javed, at Lap-Cure Clinic and showed her all the reports including USG report dated 25-09-2013 and after seeing the USG report there was total disbelief in her expressions. She prescribed an urgent USG of lower abdomen and that was done and obtained an appointment for USG from Manisha Ultrasound Clinic on 07-10-2013 and obtained the report on the following day that the report was clear that a big complex space is occupying lesion at right adnexa –? Texiloma. Complainant met Dr. N. Jaed with the report and she told the complainant that there is an existence of foreign body in her lower abdomen and further surgery is required for its removal from her body.
Finding no other alternative complainant was admitted in Lap Cure Nursing Home on 09-10-2013 and on 10-10-2013 Dr. N. Javed operated the complainant by conducting laparotomy and removed the foreign object being a medical/surgical sponge of size 8cm X 6 cm from her body which was left behind by the OPs2 and 3 at the OP1’s Nursing Home on 30-08-2013 while operating the complainant at the time of giving birth to her baby. The complainant stayed in the Lap Cure Nursing Home for 11 days and was discharged on 20-10-2013 during which every medical tests were conducted upon her and histopathology report of the foreign object was also obtained from a diagnostic centre. Had the complainant not changed her doctor in time her life could have suffered more and the complainant might have to recover at all.
Practically for negligence, reckless and careless act of the OPs2 and 3, complainant became a sufferer of such pain and practically her condition became worst and she might have to die.
After release the complainant informed the matter to the OP1 who tried to shift their responsibility to OPs 2 and 3 saying that Nursing Home has nothing to do and it was the duty of OPs2 and 3 and it is the fault of doctors of the OP1 who committed the error.
After hearing such sort of expression of the OP1 complainant annoyed and realized that due to their reckless, negligent and careless manner of medical service and operation she was compelled to spend huge money for removal of the said surgical or medical sponge for which complainant and his family member called the OPs to tender any unconditional apology for their reckless, negligent and inhuman acts and refund the monies along with compensation but they did not do anything for which ultimately a demand notice dated 06-12-2013 was sent by speed post with acknowledgement which was duly received by the OPs but they did not redress for which complainant has filed this complaint for redressal for reckless, negligent and inhuman acts on the part of the OPs and for their negligent and deficiency manner of service and unfair trade practice and for other reliefs.
On the other hand OPs2 and 3 by filing written statement separately submitted that there was no deficiency or negligent of service on the part of the OPs2 and 3 but they are acted as per medical norms and process and after such caesarean female baby was born in good condition and the operation was done uneventfully. The uterus was closed in layers and closure of abdomen was done after the mop and instrument count was taken by the on duty OT staff nurses and declared to be correct and post-operative period was uneventful, the patient passed stool and urine normally. On 02-09-2012 the patient was discharged in stable condition without any complaints.
No doubt patient has come for stitch removal on 09-09-2013 and same was removed by Dr. Keya Sengupta. The stitch line was healthy, she had no major complaints and routine antibiotics, pain killers and other supplements were prescribed by Dr. Keya Sengupata. It is specifically submitted that patient’s mother and sister came to her and complained that the patient was having a bloated feeling of abdomen and occasional breathlessness at night. Since, they had not brought the patient so, she went through Dr. S. Mehdi’s prescription on 17-09-2013 wherefrom it was found that she was taking pain killers and antibiotics, so, she advised for USG of the whole abdomen done and also to bring the patient urgently and OP also prescribed medicine for her complaints.
Subsequently, her mother and sister brought the USG of whole abdomen report on 30-09-2013 where it was noted that patient had a right sided fibroid and on examination patient complained that she was suffering from fever with slight rigors. So, OP advised certain blood tests, urine tests and a chest x-ray, prescribed certain medicines and asked her to show the report subsequently when it available. But after that the patient did not come to the OP3 in the next week but on 08-10-2013 patient came to the OP’s chamber with her mother and sister and informed that her pain was not subsiding. Since, the USG report dated 25-09-2013 from Horizon Clinic had suggested a fibroid on the Ret. Side extending into the Rt, iliac fossa, OP informed the patient party that pain was probably due to that and OP advised the patient for admission on the following day i.e. on 09-10-2013 for exploratory laparotomy operation.
Subsequently, on 10-10-2013 the patient brother and 4-5 other people came to OP’s chamber at Sana Nursing Home saying that she had been operated upon on that day and a surgical/medical sponge had been removed from her abdomen and demanded immediately monetary compensation in the form of total costs of the operation. But the allegation as made by the complainant is completely false, concocted, baseless and vague and only for harassing the OPs and with the purpose of exerting money this false claim has been made.
Further it is submitted that neither the patient nor the patient party informed them(OPs) that they had contacted in the interim period between 30-09-3013 to 08-10-2013 and Dr. N. Javed’s prescription it would be seen that he had prescribed almost the same medicines as the OP prescribed earlier. Further it is submitted by the OPs that discharge certificate and the histopathology report did not match that there was any surgical sponge of size 8 X 6 cm. On the contrary, H/P/E report reveals “8cm X 6 cm size pseudo cyst with attached 4 cm length omentum”. According to the discharge certificate the inflamed appendix was removed. However, no biopsy report of the appendix is attached, which is surprising but no discharge report issued by Dr. N. Javed, no mention of H/P/E report was considering all the matters had. In that case entire complaint is false and fabricated for which the complaint should be dismissed.
On the other hand, OP1 by filing written statement entire allegation is false and fabricated and in the hospital their doctors properly performed caesarian operation and handed over a good female baby with good condition. Thereafter, time to time she was checked up and there was no sponge inside the belly after operation. It was concocted one and practically the allegation was made for the purpose of squeezing money and entire complaint false, fabricated for which same shall be dismissed.
Decision with Reasons
In the present case after hearing the argument meticulously from both the Ld. Lawyers and also considering the complaint and written version it is found that main contention of the complainant is that after a caesarian operation done by the OPs2 and 3 in the hospital of OP1 she delivered a female child. Thereafter, complications started and on several occasions she was treated by the OPs2 and 3 and subsequently, as per instruction of the OP3 complainant obtained an USG report on 25-09-2013 and the said report communicated by a well defined solid SOL with prominent internal calcification is present in right adnexa extending into right iliac fossa. Complainant was failed to know the meaning of such observation so the report showed to the OP3 when OP3 suggested for few more tests and prescribed few other medicines but even after that complainant did not get any positive result and ultimately when complainant fell unconscious due to pain on 03-10-2013, OP2 was not available and in the absence of OP3 complainant went to Dr. Nabanita Javed at Lap Cure Clinic on 04-10-2013 and said doctor after observing the USG report prescribed for urgent USG of the lower abdomen and accordingly, on 07-10-2013 USG from Manisha Pathology Clinic was done and after such USG done on 07-10-2013 obtained report on the followed test and it was reported to Dr. N. Javed and she after proper study came to a conclusion that there is an existence of foreign body in her lower abdomen and she would have required another operation to remove of the said body.
Admitted position is that complainant again was admitted on 09-10-2013 and on 10-10-2013 Dr. N. Javed operated the complainant by adopting laparotomy and remove the foreign object being surgical mop practically which was left behind by the OPs2 and 3 at the time of stitch her belly after caesarian and complainant for the second time operation in the Lap Cure Nursing Home was discharged on 20-10-2013 and during which time several medical tests were conducted and histopathology report of the subject was also obtained by the diagnostic centre.
Complainant also relied upon the histopathology report and tests report done by Dr. Sayed M. Nadeem on 22-10-2013. In the said histopathology report suggests supprative inflammation with cystic degeneration and said doctor, histopathologist actually received one Pseudocyst measuring 8 X 6 c.m. cut open cystic tissue with attached 4 cm in length omentum and it was received by the doctor on 10-10-2013 and report was submitted on 22-10-2013. Complainant relied upon that report and another factor is that on 07-10-2013 complainant also went for USG at Monisha Ultrasound Clinic and this clinic gave a report of kidney, ureters, bladder, uterus and adnexae and as per said report it is found that a big complex space occupying lesion at right adnexa - ? Texiloma and that was done as per advice of Dr. N. Javed.
Considering that report it is clear that there was a Texiloma and Textiloma is not a medical term which used to described a mass of cotton matrix that is left behind the body cavity during an operation and such foreign body can often mimic tumors or abscesses clinically or radiologically and as per medical science such textiloma cause infection or abscess formation in the early stage whereas other remain clinically silent for many years. In case of cotton body is left inside the abdomen after caesarian operation that material eventually caused a lesion and after operation invariably such a foreign body causes reaction even sometimes not causing any infection and after considering the report dated 07-10-2013it was found that Dr. Sugata Bhattacharjee, DMRD came to a conclusion that a big complex space occupying lesion at right adnexa and he noted as texiloma but actual correct spelling is textiloma anyhow, same are called as textiloma but doctor noted texiloma probably one ‘t’ is found absent in the report and on 10-10-2013 laparotomy was done and from the discharge certificate issued by Dr. N. Javed it is clear that infected mop and pus was removed and at the same time inflated appendix was also removed and histopathology report in respect of pseudocyst the peculiar factor is that Dr. N. Javed never seen any such specimen because in the discharge certificate it is specifically mentioned that he removed inflated appendix. There is note in the said discharge certificate that he searched out a mop or a foreign body and further interesting factor is that in the discharge report there is no mention that after operation he searched out pseudocyst but if we rely upon the histopathology report we find that no granuloma or malignancy was seen in respect of the specimen but as per medical science if textiloma is found inside the abdomen subsequently granuloma must be found at best the image of granuloma shall be there but after considering the histopathology report it was found that no granuloma or malignancy was seen in respect of said pseudocyst.
At the same time there is no connection with the histopathology report and the present discharge report issued by Dr. N. Javed nowhere in the discharge report there is any note that any cyst was found and that was seen for histopathology test. For existence of textiloma several infection must be found and for that reason further operation should be done and entire abdomen should be flushed with saline by carefully removing the same but in the discharge report there is no note that any pseudocyst was collected after operation and it is to be mentioned that pseudocyst is one type of cyst. So, we have failed to understand how in the histopathology report Dr. S. Nadim stated about pseudocyst where no pseudocyst was collected by Dr. N. Javed after operation. Another factor is that the entire treatment sheet of Dr. N. Javed from 09-10-2013 to 20-10-2013 is filed wherefrom it could be collected that cyst was removed by Dr. N. Javed. Anyhow, the doctor has not noted that she found a cyst or she removed that cyst hsaving its length, breadth etc. but complainant has tried to convince that a surgical sponge was found having a size of 8 X 6 c.m. but no such sponge was detected by any pathologist or by any doctor or by any radiologist. At the same time histopathology test was made in respect of one item which was seen but that shows it is nothing but one pseudocyst but no such cyst was operated by Dr. N. Javed and no such pseudocyst was seen and histopathology test report also does not support the existence of any textiloma or any such surgical sponge etc. At the same time there is no such evidence of Dr. N. Javed but the complainant has proved from discharge report that Dr. N. Javed removed the mop from abdomen or ureters, bladder, uterus and adnexae. So, apparently it is not possible for this Forum to come to a conclusion that foreign body was found at the time of operation by Dr. N. Javed but no evidence of Dr. N. Javed was produced by the complainant in support of their compliant or allegation. Further this Forum has failed to connect with the operation made by Dr. N. Javed on 10-10-2013 with the histopathology report regarding pseudocyst because nowhere in the discharge certificate there is any such reference of pseudocyst as seen. It is to be mentioned in this regard that pseudocyst means a very peculiar cyst which is generally found inside the abdomen, uterus, pancreas etc. but Dr. N. Javed never mentioned that she found after operation one such cyst and wherefrom it was collected it is not noted in the discharge report of Dr. N. Javed. All these matters have created much doubt about histopathology report also. In view of the fact there is no such expression noted or findings of Dr. N. Javed that cyst was collected from abdomen or from uterus or from appendix or adnexae. Another factor is that appendix was not sent for histopathology test then question is how this histopathology test was prepared by Dr. Sayed M. Nadeem when there is no correlation in between the discharge summary and report of histopathology. At the same time no granuloma is found even as per we found histopathology report dated 22-10-2013 but vital fact is that complainant has not produced any part of the entire medical treatment report which was prepared by Dr. N. Javed during her stay in the said Lap Cure Clinic for the period from 09-10-2013 to 20-10-2013.
Further fact is that OP3 asked the complainant to meet with the USG Report and OP3 asked the complainant to be admitted in their Nursing Home but complainant did not do so and thereafter, she went after Dr. N. Javed but most interesting factor is that Dr. N. Javed has failed to produce any believable evidence before this Forum that he searched out one textiloma from inside the adnexae and it is to be mentioned in this regard after consulting the medical papers we have failed to rely upon the content of the complainant regarding existence of surgical sponge and about its size. Probably for some reasons or otherwise Dr. N. Javed did not give any detail history of that but in casual manner issued a discharge summary which is not at all reliable in view of the fact that the USG report dated 07-10-2013 and histopathology report dated 22-10-2013 are completely different having no correlation in between the two reports. Another factor is that doctor wrote an impression report by noting texiloma but word texiloma is absent in the dictionary and also in the medical science books. But textiloma is here and there but probably it was not textiloma for which the doctor put a question mark and ultimately during histopathology examination no textiloma or sponge or nothing was detected but a new one i.e. pseudocyst was examined but no such cyst was removed by Dr. N. Javed. There is no such mention of any such subject or object in the discharge report that same was referred for histopathology test.
Practically, after applying our series of thoughtful queries relying upon the documents we are very much doubtful about allegation as made by the complainant. Probably some other crafty hands are there for which this case was filed and complainant intentionally have not produced Dr. N. Javed as their witness to support their said claim. In the light of the above observation we are convinced to hold that we have failed to search out any truth in respect of the negligence, deficiency or callousness on the part of the OPs during or after operation of the complainant at the relevant time. At the same time story as alleged that a surgical sponge size about 8 X 6 c.m. inside the abdomen is also not supported by any documentary evidence or evidence of Dr. N. Javed who is the best person to say what happened and for which we have failed to rely upon the entire complaint to come to a conclusion that there was any negligence, deficiency or callousness of the OPs for which complaint fails.
Hence,
Ordered
That the case be and the same is dismissed on contest against the OPs without any cost.
