D.O.F. 19.10.2006

                                           D.O.O.26.12.2013

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri. K.Gopalan                   :                President

                   Smt. Sona Jayaraman K.  :               Member

                   Sri. Babu Sebastian         :               Member

Dated this the 26^th day of December, 2013.

C.C.No.242/2006

Sujala A.K.

Purakkadan Veettil,

P.O. Poyiloor,                                                        :         Complainant

Via Thoovakkunnu

Thalassery Taluk

(Rep. by Adv. P.K. Balakrishnan)

1.Tellichery Co-operative Hospital,

   Thalassery

   Represented by its Secretary.

2.The President,.

   Thalassery Co-operative Hospital                       :         Opposite Parties

   Thalassery.

3.Dr. Seethalakshmi K.V.

   Gynaecologist,

   Thalassery Co-operative Hospital

   Thalassery.

(All OPs Rep. by Adv. P. Mahamood)

O R D E R

Sri. K. Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection

 Act for an order directing the opposite parties to pay compensation of  `3,00,000. 

The case of the complainant in brief is as follows :  Complainant was admitted in 1^st opposite party hospital and caesarean was conducted on 15.10.2005.  Thereafter complainant was totally bedridden and was not even able to stand. There was severe pain to her abdomen and suffered severe pain to urinate, which contain blood.  3^rd opposite party was informed the same but she said everything was normal.  She administered medicines and discharged her from the hospital.  Blood containing urine and difficulty during urination continued.  On reporting 3^rd opposite party referred the patient to Dr.Ravi Kumar and this hospitalized from 31.10.2005 to 15.11.2005.  She was discharged without curing the complaint.  Dysuria and haematuria continued evenafter discharge from the hospital.  Because of recurrent attacks of dysuria and pyrexia fever with rigor, chills and haematuria she went to Medical College Hospital, Calicut. It was found there from that it was a case of utero-vesical fistula caused due to the cut injury to the bladder during surgery having .05 cm X .05 cm.  Over the base of bladder towards left side.  She continued 31 days treatment from Medical College and thereafter for a total period of four months.  The wreckless and negligent act of 3^rd opposite party is the cause of cut injury to a ladder during caesarian.  Subsequent dysuria and haematuria were clear indications of cut injury to the bladder.  She was bedridden for more than 4 months and incurred an expense of more than `2,00,000 towards treatment apart from the mental agony and sufferings of the baby and relatives.  Hence this complaint.

Opposite parties made appearance and filed version.  1^st and 2^nd opposite party filed version jointly.  The brief of their version is as follows :  1^st and 2^nd opposite party are the Secretary and President of the Telicherry Hospital.  Third opposite party is a consultant Gynecologist.  Complainant consulted 3^rd opposite party on 14.10.2005.  Caesarian Section with sterilization was done on 15.10.2005.  The immediate operative period was uneventful.  However on the 4^th post operative day, patient complained of dysuria and mild fever.  Her urine examination reported presence of pus cells.  Diagnosis of Urinary Tract Infection (UTI) was made and necessary medication was started.  UTI in the post operative period after caesarian section is quite common.  Following the treatment fever and dysuria subsided.  Hence patient was discharged on 21.10.2005.  However patient reported to 3^rd opposite party on 31.10.2005 with complaints of dysuria, mild haematuria and mild pain in the lower abdomen.  Since urine examination showed presence of pus cells and RBCs, the patient was referred to Urologist Dr. Ravikumar.  After two weeks of treatment patient became symptom free and hence discharged on 15.11.2005, advising her for regular follow up.  Patient never came back for further follow up.  During her hospitalization from 31.10.2005 to 15.11.2005 she was examined and treated by 3^rd opposite party and the Urologist.  She should have come for review as advised by 3^rd opposite party urologist.  The averment that the utero-vesical fistula was caused due to injury to the bladder during surgery is false, baseless.  If there is injury to bladder blood will come out through catheter.  Utero Vesical Fistula which the patient developed is a delayed complication which the patient developed is a delayed complication which is a known and well documented complication of any pelvic surgery particularly after Caesarian section.  This is more common after the second and subsequent surgery because of the adhesion of tissues due to previous surgery and dissection which is necessary for release of these adhesions.  Release of adhesions caused bleeding which was stopped completely by the use of legatures and electro cantery.  All this could result in the formation of a fistula which is a common complication of caesarian section.  Moreover utero-vesical fistula is a known complication of any pelvic surgery.  All precautions and utmost care and caution were taken during the surgery.  The averment that 3^rd opposite party omitted to close the fistula relating to the womb and bladder is false.  The fistula developed was a later complication. It is also false to say that urinary bladder was cut during caesarian.  If it was so cut there would have been blood in the catheter at the time of surgery itself.  If the fistula had developed during the stay in the opposite party’s hospital the urine would have flowed from the bladder through the fistula into the vagina.  In the letter of complainant on 27.03.2006 the patient makes no mention such a complaint.  The utero-vesical fistula was developed after discharging her second time from the hospital dysuria and mild haematuria was developed due to urinary tract infection, which was confirmed by urine examination.  After the treatment patient became free of the entire symptoms.  There is no deficiency in service and hence to dismiss the complaint.

          3^rd opposite party filed version separately denying the allegations raised by the complainant.  The contentions of 3^rd opposite party in brief are as follows :  Caesarian Section with sterilization was done on 15.10.2003.  Immediate post operative period was uneventful.  On the 4^th day patient complained of dysuria and mild fever.  Diagnosis of urinary tract infection was made and necessary medication was started.  Urinary tract infection in the post operative period after caesarian section is quite common because of the continuous urine drainage system used during and after the surgery.  Following the treatment fever and dysuria subsided and patient was discharged.  On 31.10.2005 patient again reported with complaint of dysuria, mild haematuria and mild pain in the lower abdomen urine examination showed the presence of pus cells and RBCs and hence referred to the urologist.  After investigation the provisional diagnosis of Urinary Tract Infection was made and necessary medication started.  The opinion of the Nephrologist also was consistant with the diagnosis made by the urologist and 3^rd opposite party.  After two weeks treatment patient became symptom free and hence she was discharged on 15.11.2005 with advise to come back for further follow up.  The allegation that following the surgery patient was totally bedridden and could not even stand up and her urine contain blood etc are false.  It is also false that there was no cure though treated from 31.10.2005 to 15.11.2005 and since her dysuria and haematuria continued she went to medical college.  The letter written by complainant will show that at the time of discharge she was cured of the ailment for which she had come.  It was only after few days of discharge that pain surfaced again.  As advised at the time of discharge she should have come for review.  The averment that the utero-vesical fistula was caused due to injury to the bladder during surgery is false, baseless.  If a cut injury of the bladder had occurred during surgery there would have been blood in the catheter at the timem of operation itself.  The purpose of catheterization during surgery is to immediately detect any injury to urinary bladder. No blood came through catheter.  Hence the utero vesical fistula is a delayed complication which is a known and well documented complication of any pelvic surgery particularly after caesarian section.  It is not due to any professional incompetence or willful negligence on the part of opposite parties.  If the fistula had developed during the stay in the Hospital of 1^st opposite party, the urine would have flowed from the bladder through the fistula into the vagina.  Even the letter by the complainant did not say any such complaint.  All precausions and utmost care and caution were taken during the surgery.  The complaint is frivolous and vexatious.  Hence to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

1.  Whether there is any deficiency in service on the part of opposite party?
2. Whether the complainant is entitled to the remedy as prayed in the complaint?
3. Relief and cost.

The evidence consists of the oral evidence adduced by PW1 and Pw2  and Ext.A1 to A14 marked on the side of complainant and oral evidence of DW1 and Ext.B1 and B2 marked on the side of opposite parties. Ext.X1 also marked.

Issues No.1 to 3:

Admittedly the complainant was admitted in the hospital of 1^st opposite party and undergone caesarian section with sterilization on 15.10.2005.  According to complainant after the operation she was totally bedridden with severe pain to her abdomen she was also suffered severe pain to urinate, which the urine was contained blood.  After examination 3^rd opposite party said everything was normal and finely discharged.  Since blood contained urine and difficulty to urinate continued she was again admitted in hospital from 31.10.2005 to 15.11.2005 and discharged without curing the complaint fully.  Dysuria and haematuria continued to exist as a result of which she was taken to Medical College Hospital and it was found there from that it was a case of utero-vesical fistula caused due to the cut injury to the bladder during surgery.

          Opposite parties on the other hand contended that the immediate post operative period was uneventful.  She complained of dysuria and mild fever on the 4^th day.  Diagnosis of urinary tract infection was made and necessary medication was started.  Following treatment dysuria and fever subsided and patient was discharged.  She was again reported with the complaint of dysuria, mild haematuria and mild pain in the lower abdomen.  Diagnosis of urinary tract infection was made and necessary medication started.  After two weeks treatment patient become symptom free and hence she was discharged with advice to come back for follow up.  She never come thereafter.

          PW1 adduced evidence in tone with his pleadings.  He was elaborately cross examined by opposite party.  PW1 deposed in her cross examination that she had complaint only in respect of Caesarian Section.  She has stated “Caeserian operation-നെ കുറിച്ച് മാത്രമേ പരാതിയുള്ളൂ    operation ചെയ്ത് 3 ദിവസം വരെ പ്രയാസമുണ്ടായിരുന്നില്ല.”  That means immediate post operative period was uneventful and the trouble started on the 4^th day onwards. Operation was conducted on 15.10.2005 when complainant of difficulties on the 4^th day her urine examination was done and diagnosis of urinary tract infection was made.  Opposite party contended that following the treatment dysuria and fever subsided and thus discharged on 2.10.2005.  But what is pleaded by the complainant is that there was severe pain to her abdomen and it was very difficult for her to urinate and the urine contained blood.  However, it is a fact that she was readmitted to hospital again on 31.10.2005 and continued treatment till 15.11.2005.  The complainant pleads that she was discharged from the hospital on 15.11.2005 without curing the ailment.  Complainant adduced evidence by way of affidavit evidence that “15.11.2005 വരെ ചികിത്സിച്ചു.  എന്നാൽ മൂന്നാം എതിർകക്ഷിയുടെ ചികിത്സയിൽ എനിക്ക് യാതൊരു വിധത്തിലുള്ള ഭേദവും ഉണ്ടായില്ല.”  Opposite parties on the other hand contended that after two weeks treatment patient became symptom free and hence was discharged on 15.11.2005.

Though there is dispute regarding the exact date on which she went to Calicut and started treatment.  It is an admitted fact that she had been undergone treatment by Dr. Venugopalan from M.C.H., Kozhikode.  What is pleaded is that, because of recurrent attacks of dysuria and pyrexia fever with rigour and chills and haematuria she went to the Medical College Hospital, Kozhikode on 24.11.2005.  Anyhow Ext.A8 goes to show that urine culture was done as per the prescription of PW2 by City Lab Research Centre in Calicut.  PW2 in his oral evidence stated that Ext.A8 City Lab Centreൽ നിന്നുള്ള urine culture report ആണ്.”  Ext.A8 is dated 24.11.2005.  The evidence of Pw2 expert witness goes to show that Ext.A9 was his prescription.  He has adduced evidence thus “Ext.A9 prescription ൽ കാണുന്ന ഒപ്പ് എന്റേതാണ്.  It is my letter pad.  Date is not clear ഇത് പ്രകാരം നോക്കിയാൽ മൂത്രത്തിൽ bleeding ഉള്ളതായി കാണും.”  So the allegation of the complainant that after Caesarean, it was very difficult for her to urinate and the urine contained blood, cannot be ignored PW2 expert witness Dr. Venugopalan adduce evidence as follows “Caesarean sectionന് ശേഷം മൂത്രത്തിൽ കൂടി രക്തം പോകുന്നത് കൊണ്ടാണ് മെഡിക്കൽ കോളേജിൽ വന്നത്. ഇതിനുണ്ടായ കാരണം surgery നടത്തുമ്പോൾ bladder  ൽ ഉണ്ടായ cut injury കൊണ്ടാണ് എന്ന് പറഞ്ഞാൽ അതിനു സാധ്യത ഉണ്ട്.”  So the possibility of cut injury at the time of operation cannot be ruled out.  His evidence goes to show that during caesarean operation there was fistula in between uterus and bladder.  He has adduced evidence that Caesarean operation സമയത്ത് uterus ഉം bladder ഉം തമ്മിൽ fistula ഉണ്ടായിട്ടുണ്ട്.  അതിനു പല കാരണങ്ങളിൽ ഒരു കാരണം മൂത്ര സഞ്ചി നല്ല വണ്ണം താഴോട്ട് നീക്കുമ്പോൾ  unnoticed ആയ injury കൊണ്ടാവാം Injury ഉണ്ടാവാതെ  Fistula ഉണ്ടാവില്ല. hospital നിന്നുണ്ടായ പിഴവ് പരിഹരിക്കാനാണ് മെഡിക്കൽ കോളേജിൽ ചികിത്സക്ക് വന്നത്  എന്ന് പറഞ്ഞാൽ ശരിയാണ് .”  So it is crystal clear that there was cut injury because this is a definite case of fistula.  In cross examination expert witness further affirmed that “ഉൾവശം injury ഉണ്ടായാൽ മാത്രമേ Fistula ഉണ്ടാവുകയുള്ളൂ.”  The evidence undoubtedly make it clear, however minute there was cut injury caused during the Caesarian operation, even if unnoticed.

Thus it is so relevant to see that at any point of time in between the treatment from reporting complaint after 4^th day of operation dated 15.10.2005 till the discharge of patient on 15.11.2005.   The same patient who had undergone Caesarean treatment again admitted on 31.10.2005 and treated there on 15.11.2005.  It is pertinent to note that as per the evidence expert witness PW2.  This is a case wherein, enough possibility remains to be caused injury which may have unnoticed.  But at no point of time such an injury was suspected throughout her stay over the opposite party hospital.  The evidence of PW2 that “31.10.2005 മുതൽ 15.11.2005 വരെ  Thalassery Hospital-ൽ പരാതിക്കാരി ചികിത്സ തേടിയിരുന്നു എന്ന് പറഞ്ഞാൽ എനിക്കറിയില്ല. ഇത്രയും കാലത്തെ ചികിത്സ കൊണ്ട് ഭേദമാക്കിയെടുക്കാൻ കഴിയുന്ന അസുഖമാണ് എന്ന് പറഞ്ഞാൽ ശരിയാണ്.”  The period which the patient spent in the opposite party’s hospital is as per the expert evidence a period sufficient enough to cure the disease of the complainant even if it is of the case of fistula.  The evidence of PW2 that “ഒന്നിലധികം Caesarian ചെയ്ത വ്യക്തിക്ക്  spontaneous fistula ഉണ്ടാവാനുള്ള സാധ്യത കുറവാണ്‌”   should also taken into account to evaluate the total situation.  All these leads to conclude enough persuasion to make it assure the possibility of utero vesical fistula.  It is pertinent to note that the evidence of PW2 expert goes to show that there would not be fistula in the absence of cut injury.  DW1 adduced evidence that by way of chief affidavit that the averment made by the complainant that her urine contained blood is false and baseless.  The case of the opposite parties is that if a cut injury of the bladder had occurred during surgery there would have been blood in the catheter at the time of operation itself is not acceptable in the light of evidence adduced by PW2 who had categorically stated that there is no need of blood flow even if there is a minor injury.  He has deposed in cross examination that “ചെറിയ മുറിവുണ്ടെങ്കിൽ രക്തം വരണമെന്നില്ല”.  He further deposed that “ഈ case-ൽ urine clear ആണെങ്കിലും സംശയിക്കേണ്ടതുണ്ട്  Discharge ചെയ്യുമ്പോൾ യാതൊരു വിഷമവും ഉണ്ടായിരുന്നില്ല എന്ന് കാണുകയാണെങ്കിൽ ആ സമയത്ത് fully normal ആണെന്ന് പറയാൻ കഴിയില്ല.”  It is pertinent to note that there shall not be utero-vesical fistula without an injury.  That, in any way, does not mean that was left unnoticed due to negligence.  PW2 himself stated that it might have happened even if the operation had been conducted by more capable expert doctor.  The expected question to be considered is the reason for ruling out the injury and its resultant consequences of Vesic Vaginal Fistula, which could have been ascertained by conducting Salpingogram Test or Urethro Cycloscopy.  It is categorically stated by PW2 that final detection can be done by cycloscopy.  Suppose, an attempt on that direction had been done, the entire situation would have been different from what has been happened.  Hence non-conducting of such a test is a subject matter should have been properly explained by opposite party especially in the light of the evidence of PW2 doctor.  It is pertinent to note that PW2 has adduced evidence to the effect that as per Ext.A9 it can be seen that there is blood in the urine.  This complainant was a patient re-admitted to opposite party’s hospital and undergone treatment for more than 15 days since, a complete cure of disease could not be enjoyed from the treatment of first admission, even if an extended period of treatment admittedly underwent on reporting severe pain of abdomen in the post operative period.  Correct diagnosis had not been actually done.  It is very relevant to note that PW2 deposed in cross examination that “Bladder injury എപ്പോൾ വേണമെങ്കിലും  ഉണ്ടാവാം. Injury notice ചെയ്യാൻ miss പറ്റാൻ സാധ്യത ഉണ്ട്  കാണാനുള്ള എല്ലാ effort-ഉം എടുക്കേണ്ടതായിരുന്നു.  ഈ കേസിൽ ആ effort എടുത്തോ എന്ന് പറയാനാവില്ല.”  Opposite parties failed to prove that they have taken all possible effort so as to make ascertain that the bladder has been left with free from injuries.  If that was done the entire case would have been different.

          Learned counsel for the opposite party lodged vehement argument depending on the decision of Hon’ble Supreme Court in Martin D’Souza Vs. Mohd. Ishfaq [(2009) 3 sec 1) that a doctor cannot be held liable simply because a patient has not favourably responded to a treatment given by a doctor, the doctor cannot be held liable for medical negligence.  He stressed on the point that no sensible professional would intentionally committed 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.  It is true that in the usual course no doctor would intentionally commit an act or omission injurious to a patient.  That does not mean that the absent of intention would save the doctor from liability if there is lack of care and precaution.  We do agree that in a matter where intention is totally absent and an act or omission which cannot be attributed to be so reckless or grossly negligent, he cannot be made liable if it is a criminal case.  But he is not free from civil liability.

In A.S. Mittal Vs Sale of UP (1989) 3 sec 223) a free eye camp was organized for ophthalmic surgical treatment to patients.  However, the eyes of several patients after operation were irreversibly damaged, owing to post-operative infection of the intraocular cavities of the eyes, caused by normal saline used at the time of Surgery.  The Supreme Court direct the State Government to pay `12,250 as compensation to each victims as there was a clear negligence.  It can be seen that the question of intention does not arise for consideration in awarding compensation.

Learned Counsel for opposite parties further argues that a medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.  He has also argued that the medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.  Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. He has brought to notice of the direction of the Hon’ble Supreme Court to the well known principles that has to be kept in view while deciding whether the medical professional in guilty of medical negligence by citing the case Kusum Sharma V Batia Hospital & Medical Research Centre [1(20010)CPJ 29(SC)]. 

In the light of the above direction the Honourable Supreme Court, the medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.  Taking into account the practical circumstances of the case in hand it can be seen that it is a case wherein a bladder of injury is possible at all time.  According to the expert evidence there is every chance of missing to notice the injury and the doctor is expected to make effort to assure that there was no bladder injury. His evidence in the above case goes to show that no such efforts had been made in the present case.  This is a case wherein complication reported after 4^th day  of post operative period and the patient again subjected to readmission and underwent treatment for over 15 days.  Treatment records reveals that no attempt had been made to ascertain the bladder injury, which was quite possible and need not necessarily be noticed.  If that be so, what logic can be applied to say or believe that reasonable degree of care had been exercised in order to make ascertain that there was no bladder injury.  It is pertinent to note that expert has given evidence to the effect that even if the urine is clear injury should be suspected in the present case.  Therefore the principle in Jacob Mathan Vs State of Punjab also shall not be applicable to this case since the opposite parties did not exercise reasonable competence.

In consideration of the entirety of the facts and circumstances of the case in hand and the evidence and material brought on record undoubtedly make it clear that there is deficiency in service on the part of opposite parties and we have no hesitation to hold that opposite parties are liable for the loss and sufferings of complainant by means of compensation.

Complainant /patient was admitted in the hospital of 1^st opposite party and conducted Caesarian on 15.10.2005.  On the 4^th post operative day complaint was reported.  Treatment continued and on 21.10.2005, she was discharged telling that everything is alright.  The patient reported again back on 31.10.2005 with a gap of 9 days. Since condition became worse. She was referred to Dr. Ravikumar and admitted therein.  However after two weeks treatment she was discharged from hospital on 15.11.2005.  Since condition of patient remained worse  she was taken to MCH, Kozhikode on 29.11.2005.  Thereafter it was correctly diagnosed as the case of utero-vesical fistula and cured by a prolonged treatment of 31 days.  Under the above seen circumstances it is quite natural that complainant and family might have suffered much physical, mental and financial loss.  Complainant produced the medical bills for an amount of more than `26000.  No doubt, there would be more expenses and further more mental and physical sufferings which have to be taken into account while qualifying the damage sustained by the complainant.  Hence we are of opinion that in the interest of further complainant is entitled for an amount of `1,25,000 as compensation together with an amount of `5000  as cost of this litigation. Thus issues No.1 to 3 are found in favour of complainant.

In the result, complaint is allowed directing the opposite party to pay complainant an amount of `1,25,000 (Rupees One Lakh Twenty Five Thousand only) as compensation together with a sum of `5000 (Rupees Five Thousand only) as cost of this litigation within one month from the date of receipt of this order, failing which the complainant is entitled to get interest on above said amount @ 9% from the date of filing of this complaint till the realization of the amount.  Complainant is also at liberty to execute the order after the expiry of 30 days as per the provisions of Consumer Protection Act.

          Dated this the 26^th day of December, 2013.

                           Sd/-                     Sd/-              Sd/-

                       President               Member          Member   

APPENDIX

Exhibits for the Complainant

A1.   Discharge Summary

A2.   Prescription by 3^rd OP (34 in numbers)

A3.   Lab requisition dated 02.06.06 (2 in numbers)

A4.   Lab report

A5.   Discharge bill

A6.   Medical bill dated 15.10.06 to 15.11.06 (92 in numbers)

A7.   Medical bill from Calicut Medical College (43 in numbers)

A8.   Urine and cultural report by Dr. Venugopalan.

A9.   Prescription by Dr. Venugopalan.

A10  Refer OP ticket from Calicut Medical College.

A11.  Notice copy.

A12. Pathological report from Calicut Medical College.

A13. Discharge Card from Co-operative Hospital

A14. Treatment details from Calicut Medical College.

Exhibits for the opposite party

B1. Case Sheet from 14.10.2005 to 21.10.2005.

B2. Case Sheet from 31.10.2005 to 15.11.2005.

Exhibits for the Witness

X1.  Case record from Medical College, Calicut

Witness examined for the complainant

PW1. Complainant

PW2. Dr. A.V. Venugopalan

Witness examined for opposite party

DW1. K.V. Seethalakshmi

      /forwarded by order/

                                                                     SENIOR SUPERINTENDENT