Date of filing: 30.06.2022
Date of disposal: 16.02.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.P.MURUGAN,M.Com.,ICWA (Inter), B.L., ....MEMBER-II
CC. No.153/2022
THIS THURSDAY, THE 16th DAY OF FEBRUARY 2023
Mrs.M.Ramya Devi, W/o.G.Maharajan,
No.59 Bharati Street, Lalithambal Nagar,
Thirumullaivoyal, Chennai 600 062. ……Complainant.
//Vs//
1.Sri Sai Subhramaniya Hospital Private Limited,
No.35 & 36, Masilamaveswar Nagar,
Thirumullaivoyal, Chennai 600 062.
2.Dr.Anuradha, M.D.DGO. D.N.A.,
Sri Sai Subhramaniya Hospital Private Limited,
No.35 & 36, Masilamaveswar Nagar,
Thirumullaivoyal, Chennai 600 062. ..........Opposite parties.
Counsel for the complainant : Mr.V.Balaji
Counsel for the opposite parties : Dr.B.Cheran
This complaint is coming before us on various dates and finally on 30.01.2023 in the presence of Mr.V.Balaji Advocate, counsel for the complainant and Dr.B.Cheran, Advocate counsel for the opposite parties and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging medical negligence during delivery of the child along with a prayer to direct the opposite parties to pay a sum of Rs.79,390/- towards hospitalization and medical expenses and to pay a sum of Rs.10,00,000/- towards compensation for the mental agony and to pay a sum of Rs.1,00,000/- towards cost of the proceedings to the complainant.
Summary of the facts culminating into complaint:-
It was submitted by the complainant that she got conceived on 23.10.2020 and her last LMP was 23.10.2020 and that her expected date of delivery was 30.07.2021. She had periodically undergone antenatal check up with the 2nd opposite party and was admitted on 14.07.2021 in the 1st opposite party’s hospital for delivery and the 2nd opposite party performed LSCS and the complainant delivered a male child M.Kawin on 15.07.2021 and was discharged on 19.07.2021 with the advice for suture removal on 22.07.2021. When on 22.07.2021 the complainant went for suture removal the 2nd opposite party removed the sutures and informed the complainant that the scar was healthy. The complainant had spent totally a sum of Rs.79,319/- towards the medical expenses for her delivery. After suture removal, the complainant had irregular menstrual periods. During the periods she had profuse bleedings. Swelling in the abdominal region like balloon has not come to normal and she had severe pain. It was reported to the 2nd opposite party that she had acute pain in suture area for which the 2nd opposite party had prescribed pain killer and advised USG abdomen of pelvic scan on 13.11.2021. It has been specifically recorded by the 2nd opposite party on 12.11.2021 that the complainant had pain in SP region and profuse bleeding per vaginam. On 13.11.2021 scan was taken at 1st opposite party’s hospital. Scan revealed that uterus: Anteverted, bulky and impression is bulky uterus. Even after taking scan, the 2nd opposite party failed to diagnose the actual cause for bulky uterus and to give treatment to reduce the bulky uterus. Therefore the complainant consulted Dr.Andal Ramalingam, M.B.B.S DGO attached with Aysha Hospital for second opinion. As per advice, scan was taken on 15.11.2021. Thereafter quoting all these facts the complainant issued a legal notice to the 2nd opposite party on 29.11.2021 and the same was acknowledged and given interim reply on 01.12.2021 that “an abscess without fever, inflammatory sign can be cold abscess (due to Abdominal tuberculosis) caused by mycobacteria (typical or atypical)“. However in detailed reply sent by the 2nd opposite party on 15.01.2022 she had invented the theory of sub involusion of uterus. Finally the complainant was admitted into Institure of General Surgery, RGGG Hospital Chennai on 14.02.2022. It was stated that the real cause for pain and suffering was that the 2nd opposite party had left a foreign object (suture material) inside the abdomen at the time of performing LSCS. It was a classical case where doctrine of “Res ipsa loquittor” is applicable. In a case where negligence is evident, the principle of Res ipsa loquittor operates and the complainant does not have to prove anything as the thing (res) proves itself. Thus aggrieved by the act of the opposite parties in treating the complainant the present complaint was filed for the following reliefs;
To direct the opposite parties to pay a sum of Rs.79,390/- towards hospitalization and medical expenses;
To pay a sum of Rs.10,00,000/- towards compensation for the mental agony;
To pay a sum of Rs.1,00,000/- towards cost of the proceeding to the complainant.
Defence of the opposite parties:-
The opposite parties filed version disputing the medical negligence against them contenting inter alia that the complainant had spent only Rs.22,380/- and not Rs.79,319/- as alleged in the complaint. Further after the suture removal on 22.07.2021 the complainant did not turn up for nearly four months and came only on 12.11.2021. The very fact that complainant did not take any treatment from 22.07.2021 to 12.11.2021 proves that she was absolutely normal. Bulky uterus is a medical condition known as subinvolution after pregnancy. The uterus, after few months of pregnancy, should return back to its normal size. If it did not shrink back to its normal size, as happens in many pregnant mothers, it is called as subinvolution. The opposite parties stated that the foreign material as alleged in the complaint is vicryl suture which is used to close the cut ends of uterus. It is universally used and not a non absorbable suture material. The opposite parties did suture removal on 22.07.2021 removing the non absorbable skin sutures. There are two types of sutures one type gets absorbed early and another type takes time. Whenever a suture gets absorbed, it looses its tensile strength. Before it looses its tensile strength, the surrounding tissues should grow and cover the suture area. Vicryl is a synthetic absorbable suture. It need not be removed. There is no negligence either in using the vicryl to do suturing and in not removing it. Very rarely, vicryl acts as a foreign body and produces transient irritation causing inflammatory foreign body response, erythema and induration. This rare phenomenon cannot be anticipated. Thus stating that there is no cause of action for the complaint to be filed alleging medical negligence against the opposite parties they sought for the dismissal of the complaint.
On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A7 were marked. On the side of opposite parties proof affidavit was filed and documents Ex.B1 to Ex.B3 were marked.
Point for consideration:-
Whether the opposite parties deviated from the standard of care to be exercised towards complainant in performing the surgery (LSCS) thereby committs medical negligence leading to deficiency in service and whether the said deficiency in service as alleged by the complainant has been proved by him successfully by admissible evidence?
If so to what reliefs the complainant is entitled?
Point:1
On the side of complainant the following documents were filed in proof of complaint allegations;
Discharge Summary issued by the opposite parties dated 19.07.2021 was marked as Ex.A1;
Final bill dated 19.07.2021 was marked as Ex.A2;
Scan report dated 13.11.2021 was marked as Ex.A3;
Scan report dated 15.11.2021 was marked as Ex.A4;
Legal notice dated 29.11.2021 was marked as Ex.A5;
Reply notice given by the opposite parties dated 01.12.2021 was marked as Ex.A6;
Discharge summary issued by the Government Hospital Chennai dated 24.01.2022 was marked as Ex.A7;
On the side of opposite parties the following documents were filed in proof of their defence;
Copy of cashless authorization letter from Star Health Insurance dated 18.07.2021 was marked as Ex.B1;
Copy of inpatient bill dated 19.07.2021 was marked as Ex.B2;
Copy of cash bill dated 19.07.2021 was marked as Ex.B3;
Heard the oral arguments adduced by both parties.
The crux of the arguments advanced by the learned counsel appearing for the complainant is that the 2nd opposite party while performing LSCS for complainant on 15.07.2021 had left a suture material negligently inside the uterus resulting in bulky uterus leading to irregular bleedings and infection and severe pain in SP region. When the opposite parties were contacted they gave only pain killer and only in the scan report dated 15.11.2021 it was found that some inflammatory collection was found in the uterus and by a surgery dated 14.02.2022 in RGGH Hospital, Chennai, the foreign body i.e. suture material was found and removed from the end of the tract. Thus citing the doctrine of Res ipsa oquittor the complainant alleged that the opposite parties had committed medical negligence in not removing the suture material at the time of surgery thereby liable for deficiency in service and prayed for the complaint to be allowed.
On the other hand, the learned counsel appearing for the opposite parties submitted that the suture material used for suturing the inner parts of the uterus is an absorbable material which was an universally accepted material. He further supported the version of the opposite parties that there is no negligence either in using the vicryl to do suturing and further in not removing it and also he admitted that in rare case vicryl acts as a foreign body and produces transient irritation causing inflammatory foreign body response, erythema and indurations which could not be anticipated. Thus he argued that there is no cause of action for the complaint as alleged by the complainant against the opposite parties as they had not committed any omissions and commissions leading to the medical negligence and sought for the dismissal of the complaint.
Record perused and on appreciating the pleadings and evidence of both parties, this commission holds that the opposite parties had committed medical negligence resulting in deficiency in service for the reasons given below;
It is an established principle that before and after the surgical procedure it is the duty and standard of care for the surgeon and the Hospital assisting Staff to see that no foreign object is left within the patient’s body which materials were used during surgery. In the present case as per Ex.A7 under the caption operative notes it was clearly mentioned that “Branching sinus track extending till the rectus muscle and a foreign body (suture material - probably vicnyl) seen at end of the tract. Spinal-GA, SAP, parts printed and draped. Pt. insupine, an elitical skin inciscion, made enclosing both the external opening, inciscion deepened in layers and internal end found to be in rectus muscle connected to a foreign body –suture material and sinus tract excised in toto Rectus sheath closed using 1-0 ethilon after hemostatis specimen sent for HPE &CBNAAT. Sterile compression dressing done” wherein it has been clearly mentioned that a foreign body was seen at the end of the track proving that foreign material was found inside the uterus;
It was the argument of the learned counsel appearing for the opposite parties that in rare case the suture material vicryl acts a foreign body and produces transient irritation causing inflammation etc. If in the present case the vicryl material becomes foreign body, the opposite parties when approached by the complainant complaining of pain and severe bleeding on several dates i.e. on 16.08.2021, 22.09.2021 and also on 12.11.2021 when USD abdomen of pelvic scan was advised and taken on 13.11.2021 which revealed that uterus was Anteverted, bulky and impression of bulky uterus ought to have exercised due care in diagnosing the actual cause for the bulky uterus, pain and profuse bleeding and should have treated for the same. No explanation was offered by the opposite parties as to why the bulky uterus of the complainant was not treated by them and no records/evidence were produced that treatment was given to the complainant to treat the bulky uterus and to relieve the complainant of pain and bleeding. Thus it is proved that the opposite parties failed to exercise their duty of care to be exercised after the performance of surgery.
The opposite parties submitted that bulky uterus is not a disease to investigate and treat but a medical condition known as sub involution after pregnancy. However in the present case the complainant approached the opposite parties after suture removal with severe pain with profuse irregular mensutral period and swelling in the abdominal region and hence, the opposite parties finding the same to be bulky uterus ought to have treated the same as it is accompanied with severe pain, profuse bleeding to the complainant. Hence, by failing to treat the complainant, the defence that it is only a normal condition and not a resultant condition of negligence could not be entertained.
The learned counsel appearing for the opposite parties submitted that in some case the absorbable suture material failed to get absorbed and it may lead to delay observation. But no explanation was offered or evidence produced to show that they have done their duty and found out the causation for the bulky uterus and profuse bleeding that it was only due to the retention of the suture material.
When the complainant has come up with a clear case by sufficient evidence that vicryl suture material is found in the uterus resulting in complaications, it is not clearly explained and proved by the opposite parties as to whether the foreign body i.e. suture material – probably vicryl found is a left over piece inside the uterus or it was used for suturing but had failed to get absorbed, when the burden of proof was shifted to the opposite parties to explain the reason for the presence of suture material inside the uterus.
When the presence of foreign material is established no Medical literature was produced by the opposite parties to show that in some cases the suture material may get retained unabsorbed. Mere statement could not be accepted as established fact.
Thus, when the complainant had clearly proved the presence of foreign body which fact is also admitted by the opposite parties but failed to establish that it is an admitted Medical condition in certain cases and had also not taken any efforts to rectify the same, the principle of Res Ipsa Loquittor could be applied in the absence of satisfactory explanation by the opposite parties for not diagnosing the real cause of pain for pain, profuse bleedings and bulky uterus.
This commission in the facts and circumstances has no other option but to hold that the 2nd opposite party Doctor belonging to 1st opposite party hospital had jointly and severally committed medical negligence resulting in deficiency in their service in the performance of LSCS to the complainant. Thus the point is answered accordingly in favour of the complainant and as against the opposite parties.
Point No.2:
It is seen that the surgery was performed on 15.07.2021 and the complainant was discharged on 19.07.2021 and the sutures were removed on 22.07.2021. After that she approached the opposite parties with complaints on several dates 16.08.2021, 22.09.2021, 12.11.2021 and 30.11.2021. Finally the foreign material was deducted and removed on 14.02.2022. Thus due to the non exercise of due & standard care by the opposite parties the complainant was made to suffer for more than 6 months inspite of the fact that she immediately contacted them with complaints within a month after the sutures were removed. Hence, we award a compensation of Rs.5,00,000/- which we thought would be appropriate compensation for the sufferings undergone by the complainant along with the refund of the medical expenses Rs.79,319/-. The version of the opposite parties that the complainant had spent only 22,380/- and not Rs.79,319/- as the balance amount was paid under insurance could not be considered as a proper defence as the insurance amount was paid only on the instance of the complainant taking the policy and paying the premium and hence the said amount was also accountable under the head expenses made by the complainant. We also award cost of Rs.5,000/- towards litigation expenses to the complainant.
In the result, the complaint is partly allowed and the opposite parties 1 & 2 are jointly and severely directed
a) to refund a sum of Rs.79,319/- (Rupees seventy nine thousand three nineteen only) being the medical expenses within six weeks from the date of receipt of copy of this order;
b) to pay a sum of Rs.5,00,000/- (Rupees five lakhs only) towards compensation for the mental agony and hardship caused to the complainant;
c) to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant.
d) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 6% will be levied on the said amount from the date of complaint till realization.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 16th day of February 2023.
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MEMBER-II PRESIDENT
List of document filed by the complainant:-
Ex.A1 19.07.2021 Discharge Summary. Xerox
Ex.A2 19.07.2021 Final Bill. Xerox
Ex.A3 13.11.2021 Scan Report. Xerox
Ex.A4 15.11.2021 Scan Report. Xerox
Ex.A5 29.11.2021 Advocate Notice. Xerox
Ex.A6 01.12.2021 Opposite party reply notice. Xerox
Ex.A7 24.01.2022 Discharge summary issued by the Government Hospital. Xerox
List of document filed the opposite parties:-
Ex.B1 18.07.2021 Copy of cashless authorization letter from Star Health Insurance. Xerox
Ex.B2 19.07.2021 Copy of in-patient Bill. Xerox
Ex.B3 19.07.2021 Copy of Cash Bill. Xerox
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MEMBER-II PRESIDENT
