Date of Filing : 02.03.2022
Date of Disposal: 31.03.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.P.VINODH KUMAR, B.Sc.,B.L., .....MEMEBR-I
THIRU.P.MURUGAN,M.Com.,ICWA(Inter)., B.L., ....MEMBER-II
CC. No.11/2022
THIS FRIDAY, THE 31st DAY OF MARCH 2023
Mrs.Amudha, W/o.Krishna,
No.28/45, GNG Street,
Varadharajapuram,
Ambattur, Chennai 600 053. ……Complainant.
//Vs//
1.Sri Sai Subhramaniya Hospitals private Limited,
Rep. by its Director Dr.R.Anuradha,
No.35, 36 Masilamaneeswarar Nagar,
Thirumullaivoyal, Chennai 600 062.
2.Dr.R.Anuradha MD., DGO.,
Obstetricians and Gynaecologists.
3.Dr.Santhoshkumar MBBS., DNB.,
General Laparoscopic Surgeon,
Both having office at
No.35, 36 Masilamaneeswarar Nagar,
Thirumullaivoyal, Chennai 600 062. ..........Opposite parties.
Counsel for the complainant : M/s.R.Muthukumar, Advocate.
Counsel for the opposite parties : Mr.Dr.B.Cheran, Advocate.
This complaint is coming before us on various dates and finally on 07.03.2023 in the presence of M/s.R.Muthukumar counsel for the complainant and Mr.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 12 of the Consumer Protection Act, 1986 alleging medical negligence in the treatment against the opposit parties along with a prayer to direct the opposite party to pay a sum of Rs.20,00,000/- towards the untold sufferance caused due to negligent act of the opposite parties and to pay a sum of Rs.10,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost the proceedings to the complainant.
Summary of facts culminating into complaint:-
Complainant in the month of December suffered with excessive frequent menstruation bleeding with irregular cycle and had consulted one Dr.Kanthamani who recommended to take scan. On taking it was diagnosed that she was having Fibroid Uterus problem. The said Dr.Kanthamani informed that she was not an expert to give treatment for her problem and suggested to contact one Dr.R.Anuradha, MD., DGO., having multispecialty hospital namely Srisai Subhramaniya Hospitals private Limited with advanced equipments to give treatment for her problem. Upon her advice and suggestion, in the month of February 2021 she visited the 1st Opposite Party hospital and met the 2nd Opposite party and she checked her and prescribed medicine for her problem. As per advice she took medicine and consulted her on three occasions but her problem was not cured and hence finally the 2nd opposite party suggested the Complainant for Laparoscopic Hysterectomy with BSO surgery. The complainant got admitted in the 1st Opposite Party hospital on 20.10.2021 and the 2nd and 3rd Opposite Parties carried out the Laparoscopic Hysterectomy with BSO surgery on 21.10.2021 and discharged the complainant from hospital on 24.10.2021 with condition to come back to the hospital on 27.10.2021 for removal of sutures. An amount of Rs.1,05,000/- was spent for the surgery. After surgery she had complication of abdominal pain and she went to the hospital on 27.10.2021 and reported her complication to the 2nd opposite party for which she replied that due to surgery the abdominal pain had occurred and would be cured automatically. On 28.10.2021 she suffered with automatic leakage of urine without control and hence she immediately went to the hospital and met the 2nd opposite party but she had not checked her and causally told her that after removal of uterus they gave saline wash and the said drain had leaked through urine and gave antibiotic tablets for five days. As per the 2nd opposite party instructions the Complainant took tablets but her complication has not cured and due to the complication she incurred nausea, appetite, loss of sleeping due to pain and forced to use underpad for urine leakage. Again she visited the 2nd Opposite Party and informed her that the complication had not cured, but the 2nd Opposite Party had not given proper response and instructed her to take antibiotic tablet and the Complainant had not satisfied with the 2nd Opposite Party‘s reply compelled her to take CT scan. On complainant’s compulsion the 2nd opposite party recommended for CT scan and urine test and she took CT scan and urine test at Gemini Lab. After receiving CT scan report she met the 2nd Opposite Party who had gone through the report and informed her that certain complications had occurred and that she was not able to give treatment for her complication at her hospital and advised her to get treatment at Government General Hospital and gave referral letter. The Complainant got 2nd opinion from her family doctor, who in turn referred to ESSVEE Hospital, Ambattur, Chennai. Complainant met Dr.A.Mani, who gone through CT scan report and advised for Cystoscopy & Diagnosis right URS and she got admitted in the hospital on 10.11.2021 and underwent Cystoscopy & Diagnosis right URS and found that the 2nd and 3rd Opposite Party had negligently done the Laparoscopic Hysterectomy with BSO surgery and caused damage on the right uretero and due to their negligence she had incurred right uretero vaginal fistula problem. The said Dr.C.Mani advised for Right percutaneous nephrostomy surgery to diagnosis the accurate problem. Complainant states that on 12.11.2021 she underwent percutaneous nephrostomy surgery and was advised for Right Uretero Neo Cystostomy surgery and on 05.12.2021 she underwent Right Uretero Neo Cystostomy surgery with Gibson incision made and was advised to take complete bed rest for a period of two weeks with Floeys catheter with drainage and got discharged from hospital on 08.12.2021. Again on 08.01.2022 she went to the said hospital for a day care procedure and removed the stent. The complainant state that she incurred a sum of Rs.3,00,000/- for medical and other expenses. Due to the negligent act of the opposite parties she lost her health and also immunity and she suffered untold pain and underwent three surgeries incurring monitory loss. The complainant states that the act of the opposite parties is nothing but deficiency in service. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties to pay a sum of Rs.20,00,000/- towards the untold sufferance caused due to negligent act of the opposite parties and to pay a sum of Rs.10,00,000/- towards compensation for the mental agony caused to the complainant due to deficiency in service and unfair trade practice.
The crux of the defence put forth by the opposite parties:
The opposite parties filed version disputing the complaint allegations contending interalia that the complainant had misrepresented the true facts deliberately and had concealed evidence and documents. The facts with regard to the treatment had been completely twisted to suit her needs by the complainant. The complainant was admitted on 20.10.2021 with C/o Profuse bleeding PV and frequent periods. Diagnosed to have Fibroid Uterus by Clinical examination in December 2020 which was confirmed by Ultrasound. She was given conservative treatment by the 2nd opposite party, but her bleeding did not stop. Hence she was recommended Hysterectomy. She called Dr.Santhoshkumar DNB, General and Laparoscopic surgeon and he performed total laparoscopic hysterectomy on 21.10.2021. The 2nd opposite party assisted him doing the vaginal part of the surgery. Patient was discharged on 24.10.2021 at 03:30pm. Again patient came C/o.Automatic leakage of Urine without control on 28.10.2021. The 2nd opposite party examined her and gave her antibiotic tablets for five days. Her leakage of urine did not stop and she asked surgeon Dr.Santhoshkumar to see the patient. Since it was only 7th POD, the 3rd opposite party suspected serous discharge from peritoneal cavity, as it was scanty. He saw the patient on 09.11.2021 and examined her and found a Boggy swelling over the vaginal vault with profuse watery discharge and suspected urine leak either in urinary bladder or ureter. He advised CT abdomen and pelvis. It showed small rent of 0.2mm in right Ureter. The 3rd opposite party suggested to admit the patient on the same day and to get an Urologist opinion. Since patient was not willing to continue treatment and wanted to go to RGGGH, she was given a referral letter to RGGGH Urology Department. Later it was learnt that she went to a private hospital in Ambattur and was treated by the Urologist. It is not true that the complainant spent of Rs.1,05,000/- as alleged. She was challenged to prove the expenditure with suitable receipts. The 3rd opposite party examined the complainant on 09.11.2021 and suspecting urinary tract leak, he gave a requisition for CT Urogram. The complainant had alleged that she was referred to Government General Hospital. It is not true. The opposite parties advised the patient to get admitted and wanted to treat her with the help of urologist. But patient was not willing for treatment and wanted to go to Government General Hospital. The complainant had alleged that Dr.A.C.Mani found the opposite parties to be negligent. The complainant is challenged to get expert opinion from him to prove the allegations of negligence. Complainant was not suffering from vaginal fistula when she was discharged. She was passing urine normally for 10 days after surgery. If there was negligence during surgery by which a fistula had been created, the complainant could have been passing uncontrolled urine from the day of surgery, which is not the present case. Thus the opposite parties had not committed any commission or omission. The alleged loss and damage was not due to any negligence and deficiency in service on the part of the opposite parties. Thus they sought for the complaint to be dismissed.
On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.7 were marked on their side. On the side of opposite parties proof affidavit was filed and document Ex.B1 was marked.
Point for consideration:-
Whether the complaint allegations that opposite parties caused damage on the right ureter resulting in right uretero vaginal fistula during Laparoscopic Hysterectomy with BSO surgery carried out by them constitutes medical negligence resulting in deficiency in service and whether the same has been successfully proved by the complainant by admissible evidence?
If so to what reliefs the complainant is entitled?
Point No.1:-
On the side of complainant the following documents were filed for proving the complaint allegations;
Discharge Summary given by the opposite parties dated 24.10. was marked as Ex.A1;
Bill given by the opposite parties dated 24.10.2021 was marked as Ex.A2;
C.T. scan Report dated 09.11.2021 was marked as Ex.A3;
Referral letter given by the 2nd opposite party dated 09.11.2021 was marked as Ex.A4;
Scan Report dated 27.11.2021 was marked as Ex.A5;
CT Scan Report dated 03.12.2021 was marked as Ex.A6;
Discharge Summary given by ESSVEE Hospital dated 08.12.2021 was marked as Ex.A7;
On the side of opposite parties the following document was filed in proof of their contentions;
Copy of Case Sheet of complainant was marked as Ex.B1;
It was endorsed by the counsel for the complainant that the written arguments filed by them may be considered as oral arguments. The opposite parties adduced oral arguments. Hence this commission considered the written arguments of complainant and oral arguments of opposite parties along with other pleadings and material evidence to decide the complaint on merits.
The crux of the written argument filed by the complainant is that the complainant having diagnosed with Fibroid Uterus Problem on recommendation of one Dr.Kanthamani approached the 2nd opposite party who is running a multi specialty hospital private limited. On her advice the 2nd and 3rd opposite parties carried out the Laparoscopic Hysterectomy with BSO surgery on 21.10.2021 got was discharged on 24.10.2021 and on advice came up on 27.10.2021 for removal of sutures. Totally the complainant had spent an amount of Rs.1,05,000/-. On 27.10.2021 the complainant approached the 2nd opposite party and reported abdominal pain and on 28.10.2021 the complainant suffers with automatic leakage of urine for which the complainant met the 2nd opposite party who checked and informed that it was a normal condition and gave antibiotic tablets. On her second visit when the complication was not cured the 2nd opposite party did not give proper response and on compulsion by the complainant she recommended for CT scan. On going through the report of the CT scan, the 2nd opposite party advised the complainant to get treatment in RGGGH and also gave referral letter. The complainant got second opinion from her family Doctor who referred the complainant to ESSVEE Hospital Doctor A.Mani on going through the CT scan report advised for Cystoscopy & Diagnosis right URS. It was found that the 2nd and 3rd opposite parties negligently done the Laparoscopic Hysterectomy with BSO surgery and had caused damage on the right ureter due to which the complainant suffers right uretero viginal fistula problem and Dr.C.Mani advised for Right Percutaneous nephrostomy surgery to diagnosis the accurate problem. On on 12.11.2021 she underwent percutaneous nephrostomy surgery and diagnosis that advised for Right Uretero Neo Cystostomy surgery and on 05.12.2021 she underwent Right Uretero Neo Cystostomy surgery with Gibson incision made and advised to take complete bed rest for period of two week with Floeys catheter with drainage and got discharged from hospital on 08.12.2021. Again on 08.01.2022 she went to the said hospital for day care procedure and removed the stent. The complainant state that she incurred a sum of Rs.3,00,000/- for medical and other expenses. Further the complainant had stated that proper receipts were filed to show the medical expenses. It was contended that the 3rd opposite party examined the complainant on 09.11.2021 and suspected urinary tract leak and gave a requisition of CT urogram and that the opposite parties advised the complainant to get admitted and wanted to treat her with the help of urologist. Thus it was submitted that the damage caused to the ureter was only due to the negligent surgery by the opposite parties and sought for the complaint to be allowed.
On the other hand the learned counsel appearing for the opposite parties stated that the complainant was at present absolutely normal. It is argued by him that every surgery is a risky procedure and all surgery has complications and that known complications could not be termed as medical negligence. He insisted that no expert evidence was filed by the complainant and he argued that there are three types of injuries Direct injury, Ischemic or Narcotic injury wherein in the second type of injury leakage of urine for one week would be present after. He submitted that when there is leakage after seven days operation it is not caused due to the operation. He submitted that the 2nd opposite party and 3rd opposite party are qualified Obstetricians and Gynaecologists and General Laparoscopic Surgeon respectfully. He submitted that the diagnosis and procedure was not contested. The post operative care was given after review even though she is normal. Thus referring various test books and cited the decision rendered by the National Consumer Disputes Redressal Commission, New Delhi, in Prem Bala Vs Satinder Saluja(Dr) & Ors. in FA No.115/2005 reported in III(2012)CPJ 447(NC), cited another decision rendered by the National Consumer Disputes Redressal Commission, New Delhi in md.Abbas Ansari Vs Dr.Rameshwar Pd Agarwal in RP No.1313/1999 reported in 2007(1) CPR 346(NC) and cited another one decision rendered by the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in Smt.Prem Bai Vs Dr.Smt Satinder Saluja & Ors in CC.No.70/2022 reported in 2005(2) CPR 2016, he sought for the complaint to be dismissed.
On appraisal of the pleadings and materials it is evident that the factum of surgery was not disputed. Further the suture removal and discharge of the complainant after surgery on 24.10.2021 was also disputed. It is also not disputed by the opposite parties that the complainant on her visit on 27.10.2021 and 28.10.2021 reported the opposite parties about the automatic leakage of urine. The CT scan was also admitted by both parties. The only defence by the opposite parties is that after seeing the report they insisted the complainant to take treatment. However, the complainant rejected the opinion and wanted her to refer to RGGGH and hence a referral letter was given to the complainant. If the version of the opposite parties is true the complainant ought to have taken the treatment only in RGGGH but she had approached ESSVEE hospital where she had undergone the subsequent surgery which clearly proves that the opinion of going to RGGGH was not on the part of the complainant. At this stage the version of the complainant that on seeing the report the 2nd opposite party informed the complainant that they could not give treatment for such complication and advised her to go to RGGGH assumes significance and had to be accepted. Further as per the Discharge Summary given by the ESSVEE hospital it is clearly seen that they have diagnosed that the complainant sufferred with Right Uretero Vaginal Fistula and for correcting the same they had done the procedure Right Uretero Neo Cystostomy. It is seen that as per scan report dated 09.11.2021 the impression was given as “A small rent in the anteromedical surface of the right lower ureter at the level of s4, resulting in urinoma formation. Active extravasation of contrast into the collection. Contrast also seen extending into the cervix and vagina”. The pleadings by the complainant that on 28.10.2021 she suffered with automatic leakage of urine without control, for which she visited the 2nd opposite party and informed the complication was not disputed by the 2nd opposite party. It is thus made evident that soon after Laparoscopic Hysterectomy with BSO surgery on 21.10.2021 the leakage of urine had started on 28.10.2021 within seven days and hence the arguments of the learned counsel of the opposite parties that the leakage did not start immediately and hence it could not be termed as a direct injury out of Laparoscopic Hysterectomy with BSO surgery could not be accepted. The opposite parties cited the decision rendered by the National Consumer Disputes Redressal Commission, New Delhi, in Prem Bala Vs Satinder Saluja(Dr) & Ors. in FA No.115/2005 reported in III(2012)CPJ 447(NC) and in that case the leakage of urine started after four and half months of surgery wherein it has been held “we have also gone through the medical literature filed by respondents in this case that leakage of urine after four and half months of the surgery cannot be attributed to any complications or defects in the surgery itself. It is only when such complications occur within 4 to 10 days of the hysterectomy that there could be a nexus between the problem and the surgery”. it is significant that in the present case the leakage starts within 10 days of surgery.
The opposite parties cited another decision rendered by the National Consumer Disputes Redressal Commission, New Delhi in md.Abbas Ansari Vs Dr.Rameshwar Pd Agarwal in RP No.1313/1999 reported in 2007(1) CPR 346(NC) which was also not in support of opposite parties version as complication in that case started nearly about three months after the operation which clearly indicates the said complication was not due to any negligent and act/omission on the part of the opposite party.
The opposite parties cited another one decision rendered by the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in Smt.Prem Bai Vs Dr.Smt Satinder Saluja & Ors in CC.No.70/2022 reported in 2005(2) CPR 2016 which also was not helpful or in support of opposite party‘s version wherein the complication started after four and half months. In such circumstances the learned counsel’s arguments that it was a known complication and hence could not be termed as medical negligence has to be disregrded.
In the present case even after the opposite parties knowing about the ureter damage on the basis of scan report did not take any measures to correct the same. In the facts and circumstances when the materials produced by the complainant clearly shows that she had suffered ureter damage after the surgery by the opposite parties which aspects was not denied by the opposite parties, safely we could apply the Principle of res ipas loquitor as the injury was evidently proved to occured due to the negligent surgery by the oppostie parties. Thus this commission comes to a conclusion that the act of opposite parties amounted to medical negligence resulting in deficiency in service. If at all the opposite parties had done the surgery with at most standard skill and care the damage to the right ureter might have been avoided. Thus the point is answered accordingly in favour of the complainant and as against the opposite parties.
Point No.2:-
As we have held above that the opposite parties had committed clear act of medical negligence, the complainant should be adequately compensated for the pain, suffering and monitory loss. The complainant had filed proof for the expenses made by her with the opposite parties. However, no proof was submitted for the expenses made in ESSVEE Hospital. Hence, we direct the opposite parties to refund the entire medical expenses to the complainant in addition to a compensation of Rs.5,00,000/- which we award for the physical hardship and monitory loss and mental agony suffered by the complainant. We also award cost of Rs.10,000/- towards litigation expenses to the complainant.
In the result, the complaint is partly allowed against the opposite parties 1 to 3 directing them
a) To refund a sum of Rs.1,05,000/- (Rupees one lakh five thousand only) medical expenses spent by the complainant 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 physical hardship and monetary loss and mental agony suffered by the complainant.
c) To pay a sum of Rs.10,000/- (Rupees ten 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 31st day of March 2023.
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MEMBER-II MEMBER -I PRESIDENT
List of document filed by the complainant:-
Ex.A1 24.10.2021 Discharge Summary given by the opposite parties. Xerox
Ex.A2 24.10.2021 Bill given by the opposite parties. Xerox
Ex.A3 09.11.2021 C.T.Scan Report. Xerox
Ex.A4 09.11.2021 Referral Letter given by the 2nd opposite party. Xerox
Ex.A5 27.11.2021 Scan Report. Xerox
Ex.A6 03.12.2021 CT Scan Report. Xerox
Ex.A7 08.12.2021 Discharge Summary given by ESSVEE Hospital. Xerox
List of document filed by the opposite parties:-
Ex.B1 ............. Copy of Case Sheet of complainant. Xerox
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MEMBER-II MEMBER-I PRESIDENT
