Sri Vijay Vittal Maternity and Nursing Home, Dr. B.Ramesh, Dr. Kasbe Harshavardhan, Gynaecologist,
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant- Smt.SriLakshmi against Opposite Parties- (1) Vijaya Vittal Maternity & Nursing Home, (2) Dr. Kasbe Harshavardhan Gynaecologist, (3) Dr. B. Ramesh Dr. Ramesh Hospital, Rajajinagar Entrance, Bangalore for medical negligence and for compensation of Rs. 10,38,899.20 Ps. The Ops 1 to 3 appeared through their counsel and filed written version denying the claim of the complainant in to to. 2. During the course of enquiry the complainant Srilakshmi has filed her sworn-affidavit by way of examination-in-chief as PW-1 reiterating the averments of her complaint. She has also examined one Dr. Sridhar Vytla as PW-2 who has been cross-examined by the OPs. In-rebuttal the Ops have filed affidavit of Op.No-2 & OP.No-3 by way of examination-in-chief as RWs 1 & 2 reiterating the contents of the written version. On behalf of complainant (24) documents were got marked as Ex.P-1 to Ex.P-24. On behalf of Ops (28) documents were got marked as Ex.R-1 to Ex.R-28. 3. It is worthwhile to note here that when this case was pending for final arguments, the complainant moved the Honble State Commission, Bangalore for transfer of this case as one of the Member of the Forum who was practicing Advocate had appeared for the OPs as one of the Advocates. The Honble State Commission, Bangalore vide Order dt. 22-10-07 in Misc. Petition No. 213/07 passed an order issuing direction to this Forum to dispose of the complaint of the complainant by the bench consisting of President and Lady Member only. Accordingly the arguments of both sides were heard by the bench consisting of President and Lady Member of the Forum. 4. Perused the records. From the complaint and written version of the parties and in the background of argument of both sides the following points arise for our Consideration and determination 1. Whether the complainant proves medical negligence and deficiency of service by the Respondents, as alleged.? 2. Whether the complainant is entitled for the reliefs sought for? 5. Our finding on the above points are as under:- 1. Partly in the affirmative & partly in the negative. 2. As per final order for the following. REASONS POINT NO.1:- 6. In order to avoid repetition of lengthy contents of complaint and written version of the parties, it is incumbent on us to consider the same while considering the Points 1 & 2 respectively. The arguments of the L.C. for the complainant on the allegation of medical negligence & deficiency of service is three fold one: The First part of medical negligence is regarding surgery of Total Hystrectomy i.e, Laproscopic conducted by OP.No- 2 & 3 without consent and knowledge of the complainant. The Second part of medical negligence is regarding post operative stage and suffering of complications. The Third part of medical negligence is regarding causing injury to urinary bladder of the complainant during Laparoscopic surgery and causing Incisional Hernia and its suffering. Now let us discuss the same one by one. 7. FIRSTLY it is argued by referring the complaint Paras 1 to 5 that the complainant consulted doctor OP.No-2 at his Nursing Home-OP.No-1 on the complaint of Submucous Fibroid in her uterus & stress urinary incontinence for which the OP.No-2 suggested her to undergo for abdominal hysterectomy. The complainant made up her mind for undergoing abdominal hysterectomy for removal of uterus and accordingly she got admitted in OP.No-1 Nursing Home on 21-05-05 under the care of OP.No-2. There was no pre-operative discussion with her either by OP.No-2 or by Anaesthesiologist concerned and she was unaware of the duration of surgery as she was under Anaesthesia. After the operation she was in the OP.No-1 Hospital till her discharge on 25-05-05. On 25-05-05 she was shocked to notice from the Discharge Certificate issued by OP.No-2 that Laparoscopic Total Hysterectomy i.e, Laparoscopic surgery of removal of uterus, ovaries and fallopian tubes was done by one Dr. Ramesh-OP.No-3 without taking her into confidence. She had Submucous Fibroid in her uterus but there was no problem in her Ovaries and Fallopian Tubes. The Op.No-2 doctor had also informed that only removal of her uterus would be done during abdominal hysterectomy and he had not informed her about conducting such surgery by OP No-3 nor appraised her of conducting such Laparoscopic Hystrectomy along with bilateral Salphingo oophorectomy instead of the abdominal hysterectomy. Even the OP.No-3 doctor also did not discuss with her in respect of conducting such mode of surgery. Such tendency on the part of OP.No-3 is against medical standards in practice. The L.C. by referring the Medical Terms/words Hysterectomy Total Hysterectomy, Submucous Fibroid, Ovaries and Fallopian tubes, from the Book- ANATOMICA ( The Complete Home Medical Reference), argued that when the complainant had only complaint of Submucus Fibroid in her uterus and there was no problem in her Ovaries and Fallopian Tubes so there was no necessity of surgery of Total Hysterectomy i.e, Laparoscopic surgery of removal of uterus along with Ovaries and Fallopian Tubes as done by OP.2 & 3. Even there was no introduction of OP.No-3 Dr. Ramesh who conducted Laparoscopic surgery that too without the consent of the patient/complainant. The L.C. further argued that the Discharge Certificate issued by the Ops at Ex.P-1 shows the operation of Hysterectomy, so the burden of proof shift/lies on the Ops to show that the complainant had consented for operation of Total Hysterectomy or that while operation of abdominal Hysterectomy they found it necessary for surgery of Total Hysterectomy and after informing the patient/complainant only they had conducted Total Hysterectomy operation. In this regard the L.C. has relied on the Consent Letter produced by the Ops at Ex.R-8 which shows consent for operation of Hysterectomy and not Total Hysterectomy for removal of Uterus, Ovaries and Fallopian Tubes. So this is a circumstance to show medical negligence on the part of OP 2 & 3. In-support of his argument the L.C. has relied on following Rulings reported in (1), III (2007) CPJ 189 (NC) Saroj Chandhoke V/s. Ganga Ram Hospital & another at Head Note (i) and Para 59. (2), (II) 2007 CPJ 244 (N.C.) Dr. Balgopal V/s. K.V. Radhakrishna Menon & Ors. Head Note. (3) 2008 (2) The Supreme Court Cases Page No-1 Samira Kohli V/s. Dr. Prabha Manchanda And Another Head Note. 8. As against it is argued by L.C. for Ops by referring written version Para- 6 (a,b,c,d) that the complainant on 18-05-05 had first come to OP.No-1 Nursing Home with complaint of pain in her abdomen and urinary in-continence etc., She was examined by OP.No-2 doctor and even looked into the reports obtained from other doctors and their diagnosis. The OP.No-2 also found that the complainants abdomen require surgery for bulky uterus with Submuocus Fibroid & Stress Urine incontinence. She was informed about this and was also told that her condition requiring removal of uterus and ovaries by Laparoscopic Total Hysterectomy surgery. She was explained in detail that OP.3 is an experienced and highly qualified surgeon who will do the surgery at OP.No-1 Nursing Home as his visit is on 21-05-05 and she can come on 21-05-05. In her presence only OP.3 was contacted over phone and told about the complainant and her ailments. On 21-05-05 the complainant got herself admitted into OP.No-1 Nursing Home and she was medically checked by both the Ops 2 & 3 and all required test like blood test, scanning test were done and only after being satisfied for operation on that day only, she was accordingly informed about the type of surgery that will be done and her consent was taken in the presence of her son who also singed the consent form as witness and that operative and post operative period was uneventful. All care was taken during post operative period like administration of medicines, monitoring the condition and healing process. The complainant was discharged on 25-05-05 after being informed to come if any dis-comfort was felt. Hence it cannot be said that Total Hysterectomy Surgery was done without her consent leading to medical negligence. In support of his argument the L.C. has relied on the following Rulings: (1) C.P.J. 2007 (II) Page No. 67 West Bengal State Commission Head Note (i). (2) C.P.J. 2007 (II) Page No. 472 Haryana State Commission Head Note (i). (3) C.P.J. 2007 (III) Page No. 123 (N.C.) Head Note. (4) C.P.J. 2007 (III) Page No. 428 (N.C.) Head Note. (5) C.P.J. 2007 (II) Page No. 17 (N.C.) Head Note. 9. The Ops have produced/relied on the Consent letter dt. 25-05-05 at Ex.R-8. The L.C. for complainant has also relied on this very consent letter at Ex.R-8. This consent letter shows the type of operation as Hysterectomy operation to be conducted upon the complainant/patient. It shows signature complainant/patient as well as signature of one K.Nandakishore as witness. 10. Now it is material for us to know the Medical Terms Hysterectomy and Total Hysterectomy. The Book ANATOMICA (The Complete Home Medical Reference) as referred to by the L.C. for the complainant, states the medical term Hysterectomy and Total Hysterectomy on page No. 378 which reads as under: HYSTERECTOMY Hysterectomy is the surgical removal of the uterus and it is the second most common operation on women in the industrialized world after dilation and curettage. It may be performed for a number of reasons. These include cancer of the uterus, the cervix or the ovaries; benign tumors, such as large fibroids; extreme cases of endometriosis; a severe prolapse of the uterus; excessive blood loss that is not responding to treatment; and, very rarely, after childbirth or gynecological surgery. There are several forms of this operation. A Total Hysterectomy is the removal of the entire uterus plus the cervix. A subtotal hysterectomy removes the uterus but not the cervix. A radical hysterectomy removes the uterus and the associated lymph glands in the pelvis. A hysterosalpingo-oophorectomy removes the uterus, ovaries and tubes on both sides. So from the Medical Terms referred to above it shows that Hysterectomy and Total Hysterectomy are different and not one or inclusive since Hysterectomy as seen above is the surgical removal of the uterus only and Total Hysterectomy is surgery removal of the uterus plus the cervix as rightly pointed out by the L.C. for complainant. 11. Ex.P-1 Discharge Certificate dt. 24-05-05 of complainant/patient issued by OP.No-1 hospital shows the Lap Total Hysterectomy operation and removal of both the ovaries along with the uterus. Even the preamble of second Discharge Certificate dt. 30-05-05 issued by OP.No-1 Hospital produced by Ops at Ex.R-1 and a copy of which produced by the complainant at Ex.P-3 also shows Lap Total Hysterectomy operation was done and removal of both ovaries along with uterus. As contended by the Ops, when the complainant had come to their hospital she had brought the reports obtained from other doctors and their diagnosis and Op.No-2 looked into the said reports. The Ops have also filed the Report dt. 16-02-05 issued by Laxmi Ganesh Clinical Laboratory at Guntur (A.P.) regarding Heamoglobin, Urine & Stool examination of the complainant at Ex.R-13, Biopsy Report issued by City Histopathology Laboratory at Guntur dt. 17-02-05 at Ex.R-14, Report of Ultrasonography of Pelvis of the complainant issued by Kamaraju Diagnostic Centre at Guntur dt. 16-02-05 at Ex.R-15 and Medical Report issued by Dr. Mrs. C.Savitri of Guntur dt. 16-02-05 at Ex.R-16. All the Reports at Ex.R-13, Ex.R-14 and Ex.R-15 shows the name of Dr. C.Savitri having referred the patient/complainant for those test reports Ex.R-15 the Ultra Sonography of Pelvis shows Urinary Bladder as Normal both ovaries as Normal follicles and it only shows bulky uterus with focal lesion S/O Submucous fibroid Ex.R-16 shows that Dr. C.Savitri had advised Hysteroscopic removal of Submucous Fibroid only. This Ex.R-16 which is material for our purpose interalia reads as under: Dr. (Mrs,) C.Savitri, MD.D.G.O P.H.No. 354286 Retiried Principal & Prof of Obstretics & Gynaecology 4th Lane, 18th Cross Road, Guntur Medical College & Obstertrician and Gynaecologist Brodiepet, Government General Hospital, Guntur. GUNTUR-522 002. Date 16-02-05. Name & Address: Kalluri Sri Lakshmi W/o. Krishna Rao Age: 46 years. Complaint. frequent. Advised Laparoscopic removal of Submucous Fibroid . The Ops in their written version at Para-6 (a) have contended that on 18-05-05 when complainant had first come to OP.NO-1 Nursing Home she was examined by OP.No-2 and had even looked into the Reports obtained from other doctors and their diagnosis. OP.No-2 found that the complainants abdomen require surgery for bulky uterus with Submucous fibroid & Stress Urinary incontinence. She was informed about this and was also told her condition requiring removal of uterus and both ovaries by Laparoscopic Total Hysterectomy Surgery. It is also contended by Ops that on 21-05-05 the complainant got herself admitted into OP.No-1 Nursing Home and she was medically checked by both the Ops 2 & 3 and all required tests like blood, scanning etc., were done and only after being satisfied that she can be operated on that day only, accordingly she was informed about the type of surgery that will be done and her consent was taken in the presence of her son. But the Ops have not produced any report showing the condition of the patient/complainant requiring removal of uterus and ovaries by Laparoscopic Total Hystrectomy Surgery especially when the Medical Report and the Diagnosis of Dr. C.Savitri of Guntur at Ex.R-16 shows the advise of only Hystroscopic removal of submuocus Fibroid and not for removal of both ovaries, on the basis of the Ultrasonography at Ex.R-15 showing Both Ovaries as normal. Added to this the consent letter produced by the Ops at Ex.R-8 shows consent obtained is for operation of Histectomy and not for Total Hystrectomy. No explanation is coming forth by the Ops 2 & 3 to substantiate their contention at Para-6 (a) that they have also told the complainants condition requiring removal of uterus and both ovaries by Laparoscopic Total Hysterectomy Surgery, as rightly pointed out by the L.C. for the complainant. Further, it is not the case of the Ops that at the time of operation of Hysterectomy, they found it necessary for removal of both ovaries by Laparoscopic Total Hysterectomy Surgery and after due consent of the patient they conducted Total Hysterectomy Surgery. In the absence of the same it goes without any hesitation that there was no Consent by the patient/complainant for Total Hysterectomy surgery. This our view is supported by the decision of our Honble National commission in the above referred First ruling reported in III (2007) CPJ (NC) Page NO. 189 Saroja Chandokey V/s. Gangaram Hospital Head Note (i) and Para 59 which interalia reads as under: (i) Consumer Protection Act, 1986__ Section 2(1)(g) __Medical Negligence__Hysterectomy (Removal of Uterus)__Via vaginal route__Without consent__Deficiency in service__Complainant had history of two cesarean deliveries, suffered from Dysfunctional Uterine Bleeding (DUB)__Advised for hysterectomy through abdominal route__Consent given for Total Abdominal Hysterecomy (TAH)__Series of operations performed__Dilation and curettage (D & C) carried out at time of hysterectomy not on earlier day__Hysterectomy performed initially through vaginal route and thereafter through abdominal route__Ovaries and left kidney removed__Fallopian tubes through vaginal route resulted in rupture of blood vessel__Avulsion of vein__Contention of OP, oral consent obtained from complainant, patient informed to be tentatively prepared for abdominal hysterectomy, rejected__Express consent taken only for RAH__No material produced by OP for choosing vaginal route instead of TAH, laid stress only on advantages of vaginal hysterectomy over abdominal hysterectomy__Further, OP transgressed authority and consent given by patient for TAH, removed both ovaries and fallopian tubes without knowledge and consent of patient__Apparent deficiency in service on part of Ops__Held joint and severally liable__ Compensation of Rs. 5 lakh awarded. Para-59 interalia reads as under: ..If ovaries were to be removed, the doctor ought to have informed the patient in advance, but that has not been done. How this mishap has occurred is not known but something wrong had happened at the stage when ovaries were being removed and that has resulted in avulsion and retraction of the ovarian vein AND (2) The Honble Supreme Court in the above referred third ruling reported in 2008 (2) Supreme Court Cases Page NO.1 (Samira Kohli V/s. Dr. Prabha Manchanda & Another at Para-49, 51, 63 & 76 has observed as under:- PARA-49 We may now summarise 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 he 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 judgement 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; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment. (iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though auauthorised, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision. PARA-51 Gynaecology (2nd Edn) edited by Robert W. Shah, describes real consent with reference to gynaecologists (P.867 et seq.) as follows: An increasingly important risk area for all doctors is the question of consent. No one may lay hands on another against their will without running the risk of criminal prosecution for assault and, if injury results, a civil action for damages for trespass or negligence. In the case of a doctor, consent to any physical interference will readily be implied; a woman must be assumed to consent to a normal physical examination if she consults a gynaecologist, in the absence of clear evidence of her resusal or restriction of such examination. The problems arise when the permanent interference with a function, whether or not any part of the body is removed. For example, if the gynaecologist agrees with the patient to perform a hysterectomy and removes the ovaries without her specific consent, that will be a trespass and an act of negligence. The only available defence will be that it was necessary for the life of the patient to proceed at once to remove the ovaries because of some perceived pathology in them PARA-63 ...Nor does hysterectomy include salphigo_oopherectomy, in the case of woman who has not attained menopause. Laparotomy does not refer to surgical removal of any vital or reproductive organs. ... PARA-76 In view of our finding that there was no consent by the appellant for performing hysterectomy and salpingo-oopherectomy, performance of such surgery was an unauthorized invasion and interference with the appellants body which amounted to a tortuous act of assault and battery and therefore a deficiency in service . 12. SECONDLY it is argued by the L.C. for the complainant by referring contents of Para-6 & 7 of the complaint, that after her discharge from OP.No.1 hospital on 25-05-05, the complainant had started experiencing series of vomiting, distention of abdomen and inability to pass urine on 26-05-05 so she again got re-admitted in Op.No-1 hospital on 26-05-05 and there was neither any duty doctor nor OP.No-2 present at the hospital till 28-05-05 during when she felt severe pain in her right side of her abdomen frequent vomiting and distension of her abdomen and that it is only on 29-05-05 at early hour at 12-00 AM, the OP.No-2 came and examined her and then service of one Dr. Sridhar Vytla, General Surgeon, was sought who on observing the complications of the complainant asked for an abdominal ultra sound scan. It was diagnosed from the Radiological Test of Ultra Sound scan report issued by Ashakiran Imaging Center, Raichur dt. 29-05-05 of the abdomen of the complainant that there was not only presence of Ascites but also existence of localized intra abdominal collection anterior to her urinary bladder, possibly abscess. The said surgeon Sridhar Vytla advised for conducting immediate Laparotomy (surgical incision of abdomen) to rectify the said problem. The development of said complication was on account of VESICO VAGINAL FISTULA which had erupted only because of the injury caused by the OP.No-3 to her urinary bladder negligently during the said Laparoscopic Hysterectomy and his consequential failure of rectifying the said trauma at that time when he conducted the surgery without the knowledge of the complainant on 21-05-05. It is further argued by referring of Para-8 & 9 of complaint that despite the said diagnosis the OP.No-2 failed to take urgent measures to treat the said serious problem of the complainant. But surprisingly the OP.No-2 removed the catheter from her on 30-05-05 quite against the medical standards in practice and directed the complainant to approach the OP.No-3 Doctor at Bangalore. In such desperate condition on the same day, the anxious complainant was then taken by her family members to Bangalore by train. On the way to Bangalore she started loosing urine involuntarily. The said piquant situation had put her to much embarrassment. The drenching of her clothing started emanating an obnoxious smell not only to her but also to other fellow passengers in the train. She suffered severe physical and mental agony. The OP No-2 was also negligent even in not retaining the catheter on her while sending her out of his nursing home. 13. As against the L.C. for Ops argued by referring contents of Para-6 ( e & f ) of the written version that on 27-05-05 complainant came again to Op.No-1 Nursing Home complaining of pain in abdomen and non-passing of urine. Immediately OP.No.2 checked her medically and catheterization was done for draining out urine. Subsequently on 28-05-05 on the complainant still complaining of pain in abdomen and vomiting the OP.No.3 doctor was contacted (over phone) told about the complainant and as per advise of OP.No-3 the OP.No-2 conducted certain tests on the complainant and also contacted Dr. Sridhar Vytla Surgeon to check and give his opinion about the condition of the complainant. On 29-05-05 Dr. Sridhar Vytla examined the complainant and advised Laparotomy. OP.No-3 was contacted and he advised to send the complainant to Bangalore and accordingly on 30-05-05 complainant was asked to go to Bangalore for further line of treatment under OP.No-3 and she was advised to take along with her a trained nurse and she was also advised to go to Bangalore with catheter in place. However the complainant said that she will go to Bangalore with her relatives attending on her and requested to remove the catheter and on such request the OP.No-2 was compelled to remove and the patient/complainant left the Op.No-1 Nursing home in the evening on 30-05-05. While she was leaving the hospital of OP.No-2, the full address of OP.No-3 with phone contact numbers were given and in her presence only OP.No-3 was contacted again and told that the complainant will be seeing him next day. So the L.C. argued that there is no medical negligence on the part of Op.No-2 in this regard. 14. The Discharge Certificate dt. 30-05-05 at Ex.P-3 = Ex.R-1 issued by OP.No-2 of Op.No-1 hospital shows re-admission of the patient on 27-05-05 at 3-00 PM with acute pain abdomen and not able to pass urine. It further shows that on 28-05-05 at 10-30 PM contacted Dr. Ramesh (OP-3) who advised for investigation and for Ultra Sound abdomen & X-ray. It further shows that on 29-05-05 OP.No-2 contacted Dr. Sridhar Vytla who advised Laparotomy or refer to Bangalore. It further shows that on 30-05-05 they contacted OP.No-3 Dr. B. Ramesh at 1-30 PM. who advised to send the case to Bangaore and accordingly at 6-00 PM on that day the patient was discharged from the hospital to Dr. B. Ramesh at Bangalore for further line medical management. Investigations report of Ultra Sound, X-ray, Blood Urine are sent with patient for reference. 15. Ex.P-2 is the Abdominal Ultra Sound Scan Report dt. 29-05-05 of complainant/patient issued by Asha Kirana Imaging Centre Raichur, who was referred by Dr. Sridhar Vytla consultant surgeon whose services were taken by Op.No-2 at that juncture. This Ex.P-2 shows Ascites and localised intra abdominal collection anterior to the urinary bladder possibly abscess. Post hysterectomy (Laparoscopic status). As stated earlier the complainant has examined Dr. Sridhar Vytla as PW-2 who has been cross-examined on behalf of Ops. This Dr.Sridhar Vytla PW-2 states that on 29-05-05 when he examined the patient/complainant there was distention of abdomen and also vomiting for three days. He advised for Ultra Sound Scan Report and x-ray of her abdomen. According to him he has not gone through the investigation which he had advised. The abdominal Ultra Sound Scan Report at Ex.P-2 was shown to him. But he states that he did not go to OP.1 hospital and he had no occasion to see Ultra Sound Report at Ex.P-2. According to him on 29-05-05 on the examination of the patient/complainant he had advised surgery or send the patient to OP.No-3 at Bangalore. From the evidence of this doctor PW-2 it shows that when he examined on 29-05-05 there was distention of abdominal and also vomiting for three days and he advised for Ultra Sound of Abdominal tests and x-ray abdomen. The Ultra Sound Report at Ex.P-2 also shows the patient was referred by Dr. Sridhar Vytla. Even though according to this PW-2 he had not gone through the Ultra Sound Scan Report at Ex.P-2 as he did not go to OP.No-1 hospital and OP.No-1 hospital authority did not ask him to visit their hospital and to examine the investigation report, but Ex.P-2 Ultra Sound Report is self-explanatory showing Ascties and localized intra abdominal collection anterior to the urinary bladder possibly abscess. Ex.P-5 is the Slip issued by OP.No-2 showing the hospital address of Op.No-3 Dr. B.Ramesh at Bangalore with Cell Number and Land Phone. 16. As seen above, the Discharge Certificate dt. 30-05-05 at Ex.P-3=Ex.R-1 does not disclose removal of urinary catheter at the request of the complainant against medical advise. As rightly argued by the L.C. for the complainant when the complainant/patient was re-admitted in the hospital on the complaint of vomiting and distention of her abdomen and not to pass urine, when the Ultra Sound Scan Report Ex.P-2 shows the presence of Ascites of localised intra-abdominal collection anterior to her urinary bladder possibly abscess and when the complainant/patient was asked to go to Bangalore on the advise of OP.No-3 at Bangalore, then was it a casual/normal-thing to remove catheter in place even at the request of the patient.?. So removal of catheter is certainly quite against the medical standards in practice in such conditions of the patient as rightly argued by the L.C. It would be more so when the Discharge Certificate even does not spell out the removal of catheter against the medical advise. So the contention of the complainant about the consequences of removal of catheter leading to start loosing urine involuntarily and drenching of her clothing started emanating obnoxious smell even to the fellow passengers in the train and thereby the complainant suffering severe physical and mental agony cannot be brushed aside as false or Exaggeration. 17. It is further argued by the L.C. by referring the contents of the complaint at Para-10 to 12 that on the basis of the address of the OP.No-3 provided by the OP.No-2 the complainant and her son located the hospital of OP.No-3 and submitted the Ultra Sound Abdominal Scan Report dt. 29-05-05 done at Raichur (vide Ex.P-2) and she also explained her pathetic condition of experiencing serious complications since 26-05-05. But OP.No-3 was careless in not arranging urgent medical attention at her complication till 10-06-05. On 10-06-05 she was taken to operation theater by Op.No-3. On enquiry OP.No-3 revealed that there was a damage occurred to the urinary bladder during the surgery conducted by him at Raichur and therefore a minor surgery was necessitated. Accordingly Anaesthesia was administered on her prior to the surgery. But subsequently she noticed a major cut from left to right of her abdomen was done to carry out the surgery to her urinary bladder because of injury and consequential eruption of vesico vaginal fistula. She was in a state of confusion and shock about her compulsion of undergoing the said major surgery. After the 4th day of the said surgery she was made to sit but she started loosing urine both through vagina and also through loosened stitches at her abdomen. While dressing her stitches, her abdomen was being routinely pressed to remove the urine. In the said situation she suffered un-control of urine, lack of food disgust on her life etc., it was an agonising experience to sustain the urine smell on her dress and therefore she had to spend sleepless nights. It was on 30-07-05 the involuntary passing of her urine was controlled and subsequently three stitches were re-stitched by OP.NO-3 She spent the entire period from 25-05-05 upto the end of June 2005 on saline only and therefore she became much feeble. The complainant was on catheter at OP.No-3 hospital for two months. The OP.No-3 knew that she would not have experienced such complications and corresponding expenditure had he not caused injury to her bladder. 18. On the contrary it is argued by L.C. for Ops by referring written version at Para-6 (g) and Para- 7, 8 & 10 that on 31-05-05 the complainant got admitted to the hospital of OP.No-3 at Bangalore and after detailed investigation and examinations on 10-06-05 OP.No-3 got the complainant to under-go Laparotomy and Vesico Vaginal Fistula removal by expert Urologist Dr. L.N. Raju assisted by OP.No.3 along with one Dr. Mohan. The post operative period was uneventful. On 07-07-05 Re-suturing of the wound was done. On 25-07-05 stent was removed and bladder was found to be normal and she was discharged in good condition after giving her follow up instructions for taking medicines described. The complainant left the hospital of Op.No-3 without making payment of charges. The complainant has twisted real facts and has concealed the known facts in her complaint by falsely contending in para-2 of her complaint, that there was no pre-operative discussion and she was unaware of duration of the surgery and further by contending in Para-3 that she had not consented for Lap Total Hysterectomy and she had opted only for hysterectomy for removal of uterus and she does not know OP. NO-3 Dr. Ramesh Bangalore who conducted operation without taking her into confidence. The further contention of the complainant that there was no problem in her ovaries and fallopian tubes and she was not informed about the surgery done and the surgery conducted on her at Raichur was against the medical standards in practice and contention of the complainant that the post operative complications and problems are result of injury caused by OP.No3 Dr. Ramesh to the bladder negligently during Laparoscopic Hysterectomy and failure of rectifying the same at that time are all false and untenable allegations. 19. The complainant has produced Discharge Summary issued by Op.No-3 hospital at Ex. P-13 regarding her medical treatment from 31-05-05 to 31-07-05. The Ops have also produced copy of this Discharge Summary at Ex.R-18. This Discharge Summary at Ex.P-13 = Ex.R-18 shows that the complainant was admitted in OP.No-3 hospital on 31-05-05 and the operation was done on 10-06-05 and she was discharged on 31-07-05. Past History shows complaining bulky uterus Submucous Fibroid History & Stress Urinary incontinence. Operative & Post operative period was uneventful patient discharged on 25-05-05 and on 27-05-05 pain abdomen, vomiting Dysuria, started, Managed conservatively. Later patient was found to have V.V.F. (Vasico Vagina Fistula), decision was taken for Laprotomy and procedure. Operative Notes shows that on 10-06-05 under General Anaesthesia, Laparotomy and repair of Vesico Vaginal Fistula done by Urologist Dr. L.N. Raju, Dr. Mohan, Dr. B.Ramesh (OP.No-3) Anaesthetist Dr. Managolli under General Anaesthesia Laparotomy done and V.V.F. repaired on 10-06-05. Post operative period uneventful. On 07-07-05 Re-suturing of the wound done. Later on 25-07-05 under aseptic precaution bilaterally stent removed, and bladder was found to be normal. U.S.G. at the timing of discharge was normal. Patient was discharged is in good condition with advise of follow up instructions. 20. The Ops have also produced In-Patient Record issued by OP.No-3 hospital, Bangalore at Ex.R-22. It shows the admission of the complainant/patient on 31-05-05 at 6-20 a.m. referred by Dr. Harshavardhan (Op.No-2) and the date and timing of discharge as on 31-07-05 at 4-00 PM. Final diagnosis shows Vasico Vaginal Fistula. They have also produced case sheet of the patient/complainant at Ex.R-23 and Operation Record at Ex.R-24 showing the date of operation as on 10-06-05. 21. The L.C. for the complainant argued that the Ultra Sound Scan Report at Ex.P-2 which was taken at the advise of Dr. Sridhar Vytla whose services were taken by Op.No-2 doctor at the time of her re-admission in the Op.No-1 Hospital shows Ascites and localized intra abdominal collection anterior bladder, possibly abscess i.e, Vasico Vaginal Fistula so there was no need for Op.No-3 doctor to wait till 10-06-05 for operation of Vasico Vaginal Fistula and that too OP.No-3 doctor has not produced any evidence to show that the patient was subjected to investigation of her disease and till 10-06-05 they had not diagnosed for operation of V.V.F. We find considerable force in this argument. Admittedly Ex.P-3 Discharge Certificate of OP.No-1 hospital shows among other things that on 29-05-05 Dr. Sridhar Vytla (whose services were taken by Op.No-2) on examination of complainant had advised for Laparotomy or to send complainant to Op.No-3. It also shows that investigation reports of Ultra Sound X-ray and Urine are sent with complainant/patient for reference. Ex.R-23 History and Physical Examination dt. 31-05-05 of Op.No-3 Hospital shows the Ultra Sound Abdominal and Pelvis taken at Raichur on 29-05-05 showing Ascites and localized intra abdominal collection anterior to urinary bladder possibly abscess. So it shows that abdominal scan report Ex.P-2 has been gone through by the doctor OP.No-3 on 31-05-05 itself, then we do not know as to what made the doctor OP.No-3 to wait for operation of V.V.F. till 10-06-05 as rightly pointed out by the L.C. for the complainant. It would be more so when the complainant/patient was referred to him by OP.No-2 doctor as per advise of this very doctor Op.No-3 regarding the alleged complaints of complications as could be seen from Discharge Certificate at Ex.P-3 = Ex.R-1 issued by OP.No-2 of OP.No-1 hospital. This is also a circumstance to show medical negligence and deficiency in service as alleged. 22. THIRDLY it is argued by L.C. for the complainant by referring to Paras 13 & 14 of complaint that after her discharge from Op.No-3 hospital on 31-07-05 the complainant started experiencing the problem of frequent urination for every hour because of the surgery done on her urinary bladder by OP.No-3 and its consequential reduction in size. She could not able to attend her work because of weakness and corresponding requirement of frequent urination. Because of the impact & negligently conducted Laparoscopic Hysterectomy and corresponding Laparotomy by OP.No-3, there is development of new complications of frequent discharge of sinus at in-cized area of her abdomen and there is an incisional hernia of huge bulge as the lump protruding at the place of stitched area of her abdomen. The doctors at the OPEC hospital Raichur have diagnosed the same as hernia and advised her wearing of belt life long by saying that any surgery of hernia at the place already operated area of her abdomen is harmful to her. The capacity of filling the quantity of urine in her bladder now alarmingly reduced insise. 23. As against this the L.C. for Ops argued that the complaint of alleged pain and hernia is a known complications of Laparoscopic Hystrectomy. So it cannot be said medical negligence during the operation of Laparosocopic Hysterectomy. In-support of his argument the L.C. has relied on Medical Literature on complications of Laparoscopic Hysterectomy, which we will discuss at a later stage. 24. The Term Vasico Vagina Fistula means abnormal opening between the bladder and vagina (as per medical dictionary 2nd edition by P.H. Collin Universal Book Stall New Delhi- referred by the L.C. for the complainant). As stated earlier Ex.P-2 Abdominal Ultra Sound Scan Report shows Ascites and localized intra abdominal collections anterior to the urinary bladder possibly abscess. The complainant has produced the Prescription chit issued by Dr. B.Sambasiva Rao of Sri Sai Kidney Center Hyderabad at Ex.P-16. She has also produced medical report issued by Rajiv Gandhi Super Specialty Hospital Raichur dt. 19-05-06 at Ex.P-17 showing the hand sketch diagram to show hernia and also produced Prescription and medical bills at Ex.P-18 & Ex.P.19. Complainant has also produced Medical Diagnosis Report issued by Dr. Y.P.Chandra Sekhara Rao of Sri-Rang Hospital at Hyderabad dt. 22-08-06 at Ex.P-22 showing the hand sketch diagram to show Incisional Hernia and has also produced Estimate dt. 29-08-06 at Ex.P.23 issued by said Sri-Rang Hospital showing estimated cost for repair of multiple incisional hernia for about of Rs. 35,000/- to 40,000/-. The complainant has also produced the opinion report of Dr. Sridhar Vytla of his V.V.R. Surgical Clinic dt. 14-06-06 at Ex.P-24 showing Incision Hernia and Prescription of medicine. 25. The Ops have produced Medical Literature from Text Book of Gynaecology (from pencil marked Page Nos. 11 to 22) on Complications of Laparoscopic Hysterectomy like Prevention, recognition and management. It states that Laparoscopic Hysterectomy poses additional risk of injury to the large urine vessels, pelvis ureteres, bladder, rectum and sigmoid colon. Complications of operative Laparoscopy most commonly mentioned in literature include Anaesthesia problems, puncture site bleeding injury to the major vessells or Viscera by trocars, and thermal injury to bowel or ureter. Injury to the bladder Bladder injury occurs in approximately 0.5-1% of allmajor pelvic sugries. Laparoscopic hysterectomy carries about the same incidence as other major pelvic surgery. Late Post Operative complications: Genital fistula, especially Vesico Vaginal fistula, may occur any time post operatively. A very small one may not become evident until weeks or even months after surgery. Vesicovaginal fistula usually develops as a result of unrecognized or inadequately repaired sites of trauma. Therefore, to avoid vesicovaginal fistula formation, immediate recognition and repair of bladder injury are of paramount importance. Preoperative instillation of 15 ml of concentrated indigo carmine dye is especially helpful. Urinary Tract Injury/Blader Injuries : Bladder injury is more common during Laparoscopic Hysterectomy than other Laparoascopic procedure. Bladder can be injured during dissection of Retzuis space for incontinence surgery. 26. This medical literature states Laparoscopic Hystrectomy possess additional risk of injury to the large uterine vessels, pelvic ureters, bladder, rectum, and sigmoid colon and bladder injury is more common during Laparactomy Hysterectomy than other Laparoscopic procedure. It also states Vesico Vaginal Fistula may occur any time post operatively. A very small one may not become evident until weeks or even months after surgery. From this medical literature it manifest that Vasico Vaginal Fistula and Incisional Hernia are the known complications of Laparoscopic Hystrectomy which may occur at any time post operatively. 27. As rightly contended and argued by the L.C. for Ops there is no Expert opinion/report or evidence produced in this case to prove that the injury to urinary bladder of complainant in Op.No-1 hospital and Incisional Hernia caused to her in Op.No-3 hospital are the result of medical negligence by Ops 2 & 3. Added to this Dr. Sridhar Vytla in Para-7 of his cross-examination has admitted that incisional hernia noted by him in Ex.P-24 is a known complications of abdominal Hystrectomy surgery. Ex.P-2 Report which he has gone through now does not show cause of accumulation of fluid in the abdominal leading to distillation of abdomen noted by him in Ex.P-4(1) case sheet. The Ops have produced a copy of Notification issued by Rajiv Gandhi University of Health Sciences Karnataka, Bangalore dt. 22-03-06 at Ex.R-17. It goes to show that the Rajiv Gandhi University of Health Sciences Karnataka has ganted permission to start fellowship programme in Gynaecological Endoscopy at Dr. Ramesh Hospital and Research Institute at Bangalore. The Ops have also produced the BIO-Data of Op.No-3 Dr. Ramesh at Ex.R-28. It shows educational qualifications, Awards and honours and experience of Op.No-3 in his profession. 28. It is not the case of the complainant that OP.No-3 doctor is not an experienced or having no knowledge in the field of the alleged surgery done by him. As stated earlier the medical literature amply goes to show the known complication for the alleged surgery. Of course according to the complainant for the alleged surgery she had not given any consent and this point has already been dealt with above in her favour. So viewed from any angle it cannot be said that the post operative complication and problems are the result of injury caused by Op.No-3 to the bladder negligently during Laparoscopic Hystrectomy and failure of rectifying the same as alleged. 29. In a nut shell the complainant has succeeded in-proving medical negligence & deficiency in service only to the extent that the alleged Total Hysterectomy operation was done without her consent and not taking due care in post operative complications as discussed above. But the complainant has failed to establish the foremost part of medical negligence & deficiency in service that the post operative complications are the result of injury caused to her bladder negligently by Op.No-3 during Laparoscopic Hystrectomy. Hence point NO-1 is answered partly in the affirmative and partly in the negative. POINT NO.2:- 30. The complainant has sought for compensation/damages under the following heads: 1) Rs. Four Lakh towards pain and sufferings. 2) Rs. Three Lakh towards loss of amenities. 3) Rs. Two Lakh towards future medication. 4) Rs. 7,158/- towards medical expenses as shown in Annexure-I. 5) Rs. 38,641.28 Ps towards medical expenses as shown in Annexure-II. 6) Rs. 23,100/- towards hospitalization expenses paid to OP.No-1. 7) Rs. 40,000/- towards hospitalization expenses paid to OP.No-3. 8) Rs. 30,000/- towards expenditure incurred her Attendance at Bangalore for their boarding & lodging. In all she has claimed Rs. 10,38,899.28 ps. The complainant has produced (6) prescriptions issued by OP.NO-2 at Ex.P-6(1) to Ex.P-6(6). Medical Bill issued by Op.No- 1 & 2 for Rs. 23,100/- at Ex.P-7. Medical Bills for Rs. 7,158/- in Annexure-I at Ex.P-8 (1) to Ex.P-8 (13). Medical Bills for Rs. 38,641.28 Ps in Annexure-II at Ex.P-11 (1) to Ex.P-11(56) along with Prescriptions issued by OP.No-3 at Ex.P-12(1) to Ex.P-12(6). (6) Medical Bills issued by OPEC Hospital Raichur at Ex.P-19(1) to Ex.P-19(6). It is the case of the complainant as argued by her counsel that because of surgery done on her urinary bladder and its consequential reduction insize she is not able to attend her work because of weakness and corresponding requirement of frequent urination she was forced to tender her resignation to her job in Kammamsangham School for which she was getting monthly salary of Rs. 2,400/- and she has to loose monthly salary and also monthly revenue of Rs. 1,500/- towards tuitions. She has produced her Resignation Letter to the said School dt. 02-08-05 at Ex.P-20 and Salary Certificate issued by said School at Ex.P-21. She has also produced Estimate letter issued by Dr. Y.P. Chandrashekhar Rao at Hyderabad at Ex.P-23 showing the approximate Estimate for repair of multiple Incisional hernia for Rs. 35,000/- to 40,000/-. The complainant has also contended that she has met all the expenditure for all tests, scan and medication in the hospital of Op.No-3 and has also paid Rs. 40,000/- towards hospital and doctor charges to OP.No-3 who had claimed to pay bill of Rs. 60,000/- and insisted to pay the balance amount of Rs. 20,000/- for which she sought time but OP.No-3 was not agreeable for the same and so she expressed her anguish at the queer behavior of OP.No-3 in harassing and even OP.No-3 has not issued any bill for payment of Rs. 40,000/- by her. 31. As against this it is contended by Ops that the complainant has left the Hospital of OP.No-3 without making payment of charges. They have produced the medical bills at Ex.R-19 for Rs. 79,725/- and Rs. 30,345.19 Ps. with a Note that the patient has not paid the bill totally. The records reveal that the complainant had got issued legal notice to OP.No-3 vide Ex.P-14 requesting to issue True Copies of entire Case Sheet, Discharge Summary, Investigation Repot Line of Treatment to the complainant in OP.No-3 hospital at Bangalore and also Investigation Report sent by OP.No-2 Dr. Harshavardhan. This Legal Notice also shows that a Demand Draft of Rs. 300/- was enclosed towards cost of the said true copies of the hospital records as per the Xerox copy of D.D. filed at Ex.P-14(1). The records also reveal that OP.No-3 doctor has replied to the said notice vide Ex.P-15 by stating that as per the Hospital Rules the patient is entitled to the said documents only after setting the Hospital Bills and since the complainant has not settled and not paid the hospital bills so she is not entitled for the authorized documents and there by he has sent back the D.D. which was sent along with legal notice. From this Reply Notice at Ex.P-15 it also shows that OP.No-3 has stated regarding the non-payment of Medical bills by complainant at his hospital. The complainant, it appears has not refuted this allegation of non-payment of medical bills by asserting the so-called payment of even Rs. 40,000/- by her to OP.No.3 and non-issuance bill by Op.No-3 as alleged by her. So in the absence of the same it follows the non-payment of the alleged total medical bills of Rs. 1,10,070.90/- ps. to Op.No.3 by complainant. Discharge Summary at Ex.P-1 & Ex.P-3 = Ex.R-1 of Medical Report of Dr. C.Savitri of Guntur at Ex.R-16 shows that the complainant was aged about 46 years having three sons of 26, 25 & 23 years of age, at the time of Total Hysterectomy Suregery. Hence in-view of our finding on Point No-1, regarding medical negligence & deficiency in service with regard to surgery of Total Hystrectomy without her consent & knowledge by OP.No- 2 & 3 and medical negligence & deficiency in service in Post operative stage as discussed above, and having regard to the facts and circumstances of the case as discussed above, we feel it just and proper to award a total compensation of Rs. One Lakh by denying the payment of entire medical bill (of Rs. 1,10,070.90 according to Op.No-3 or balance only according to the complainant) to Op.No-3 in the ends of justice as observed by Honble Supreme Court, in the above referred third decision at Para-76. In this view of the matter we pass the following order: ORDER The complaint of the complainant is allowed in part. The Ops 1 to 3 jointly and severally shall pay a total compensation of Rs. One Lakh to the complainant along with Rs. 2,000/- (Two thousand) towards cost of litigation. The Ops shall comply this order within (6) weeks from the date of receipt of copy of this order. Office to furnish a copy of this order to both the parties forth with free of cost. Sd/- Sri. N.H. Savalagi President Dist.Consumer Forum-Raichur. Sd/- Sri. Gururaj Member. Dist.Consumer Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath Member. Dist.Consumer Forum-Raichur.
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