Date of Filling:      22.03.2016

                                                                                                                       Date of Disposal:  21.08.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT:   THIRU.S.PANDIAN, B.Sc., L.L.M.                                 ….PRESIDENT

THIRU:    R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP.,      …MEMBER

CC No.12/2016

TUESDAY, THE 21 DAY OF AUGUST 2018

Mrs. B.Prema,

W/o.S.Babu,

No.2/82, Sengeni Amman Koil Street,

Siruseri,Navalur,

Chennai -603 103.                                              ……Complainant.

                                                 //Vs//

The Chainman,

Kaveri Trust Hospital,

Community Health care,

Multispeciality Hospital,

No.36 Ponnan Kinaru Street,

Villivakkam,

Chennai - 600 049.                                         …..Opposite party.

The complaint is coming upon before us finally on 06.08.2018 in the presence of M/s.J.Janarthanan, counsel for the complainant and M/s.Dr.B.Cheran, counsel for the opposite party and upon hearing arguments, having perused the documents and evidences this Forum delivered the following.

ORDER

PRONOUNCED BY THE S.PANDIAN, PRESIDENT.

This complaint is filed by the complainant U/S 12 of the Consumer Protection Act-1986 against the opposite party for seeking direction to refund a sum of Rs.2,59,688/-for the surgery held at Apollo Hospital and a sum of Rs.99,745/- spent for the two surgeries by the opposite party and a sum of Rs.5,00,000/- towards compensation for the deficiency of service on the part of the opposite party for the mental agony and hardship caused to the complainant and with cost.

2.The brief averments of the complaint are as follows:-

The Complainant was suffering from abdomen pain and profuse/prolonged bleeding PV for about 10 months. Hence the complainant had consulted with opposite party for a treatment and the opposite party had conducted several tests and found that the complainant is facing problem of fatty liver, bulky uterus with focal adenomyosis and Inra Umbilical Herinia.  The opposite party advised the complainant for admission and operation to be undergone for the above said defects.

3. As advised by the opposite party, the complainant was admitted on 22.09.2014 at 2P.M. After taking several tests, the complainant undergone surgery on 28.09.2014 and complainant was discharged from the opposite party Hospital on 03.10.2014.  For which, a discharge summary was issued by the opposite party and for the said treatment, the complainant had paid a sum of Rs.74,745 /- towards the operation and other charges for which, the opposite party had issued a bill.

4. Thereafter, the complainant was again facing the stomach pain and continuous leakage of urine with blood.  When the complainant had consulted the opposite party, the opposite party after taking scan and other tests, advised the complainant for admission for another surgery.  As per the advice of the opposite party, the complainant had admitted on 07.01.2015 and undergone surgery on 08.01.2015 and thereafter the complainant was discharged on 10.01.2015.  For the said admission and undergone surgery, the opposite party charged a sum of Rs.25,000/- which was also paid by the complainant to the opposite party.

5. Again the complainant was suffering from the same problem continuously, the complainant consulted with Apollo Hospital at No-21 Greams lane, Greams Road Chennai and Apollo Hospital had conducted several tests and scanning, advised the complainant to undergo a surgery.  Since, the urinary bladder of the complainant was damaged by knife at the time of surgery conducted by Cauvery Trust Hospital.  Further, Apollo Hospital Authority said that at the time of surgery negligence of the doctor who conducted surgery by mistakenly caused said injury at the urinary bladder.  Unless the injury in the urinary bladder is rectified, the complainants condition may be serious and also death may be happened.   As per the advice of the Apollo Hospital, the complainant admitted on 27.01.2015 and undergone surgery on 28.01.2015 and discharged on 29.01.2015.  For the entire test and operation, Apollo Hospital had charged a sum of Rs.2,59,688/- for which they had issued a bill on 29.01.2015.  On due payment by the complainant.

6. That due to the defect and negligent treatment given by the opposite party, the complainant had to undergo two surgeries which does not warrant for normal treatment.  The complainant has to spend huge money for unnecessary two surgeries and also suffered physically and mental torture.  These are all caused only due to the defect and deficiency of service of the opposite party.  Hence this complaint is filed.

The contention of written version of the opposite party is briefly follows:-

7. The opposite party does not admit any of the allegations in the complaint except those that are specifically admitted herein and puts the complainant to strict proof of all the remaining allegations not admitted. Most of the allegations in the complaint are false, concocted, frivolous, vexatious and in imaginary and unsustainable in law and on facts.

8. The complainant Mrs.S.Prema was suffering from abdominal pain and profuse and prolonged bleeding per vegina for about 10 months.  The opposite party performed several tests and found that the complainant was suffering from

1. Fatty liver

2. Bulky uterus

3. Focal adenomyosis,

4. Umbilical hernia.

The complainant was operated on 28.09.2014 and was discharged on 03.10.2014.  She was passing urine normally.  After two weeks of surgery, she complained of leakage of urine.  Diagonostic Cystoscopy was done on 08.01.2015.  The complainant was advised Vesico Vaginal Fistula repair surgery.  The complainant did not attend opposite party hospital.  She got operated at Apollo Hospital on her own wish and will and now perfectly normal. Dr.S. Tamilarasi is a consultant Gynaecologist in this Hospital for the past 15 years who is in Government Service at Anna Nagar peripheral Hospital.  Dr.S. Tamilarasi  is the concerned surgeon in this case.

9. The complaint the complainant underwent only the diagnostic cystocscopy, an investigative procedure, on 08.01.2015.  The opposite party had not received any money from the complainant as alleged.  The complainant had alleged that the Apollo Hospital Authority had said that the opposite party had been negligent in doing surgery and had damaged the urinary bladder by knife by mistake.  They had also said that the complainant condition is serious and death may also happen.  All these allegations are bald and have no legs to stand.  The complainant was never serious and was manged only in normal ward. 

10. On examination-patient was found to be Anaemic with Incisional Hernia following sterilization done outside.  Profuse bleeding PV was present.  Investigation ordered:

Hb.7.6gms%

Scan on 11.09.2014-Bulky uterus, Focal Adenomyosis, Infra Umbilical Hernia

11. In view of Dysfunctional Uterine bleeding leading to Anaemia with paid abdomen patient was prepared for Hysterectomy with Incisional Hernia Repair with Abdominoplasty after due counseling and informed consent.

Since the patient was Anaemic with poor general condition, patient was admitted for pre operative evaluation and preparation for Surgery.

In view of Incisional Hernia following Sterilization 20 years back patient was counseled about inherent tissue weakness.

3units of packed cells transfused, general condition improved and patient was posted for surgery (hysterectomy with Incisional Hernia Repair with Abdominoplasty) with informed consent on 28.09.2014 -6 days after admission.  Anaesthetic fitness was obtained from Dr.Sathyan M.D. (Anaesthesia) 28.09.2014 - Under Epidural/Spinal, Total Abdominal Hysterectomy with Bilateral Salphingo Oopherectomy with incisional Hernia repair with Abdominoplasty done.  Hysterectomy was completed without any complications.  Clear urine drained during and after surgery.  No Leakage.

12. Post - operative period was smooth, Intake and output chart was maintained.  Catheter was removed on 30.09.2014.  Patient voided clear urine.  No leakage.  Patient was observed for 3 days, Drainage Tube was removed, dressing changed and patient discharged in good general condition on 0310.2014.  Till that time patient was voiding urine normally.  No leakage.

13. Patient was reviewed on 07.01.2015 and admitted for Diagnostic Cystoscopy with retro grade pyelogram.  The procedure was done on 08.01.2015 and patient was discharged with the advice to come for Vesico Vaginal Fistula repair on 17.01.2015

Each and every aspect was taken care and explained to the patient, there was no negligence at any time:

Adequate preoperative preparation was done, Anaemia corrected, general condition improved.

Surgery was done with due care; clear urine drained Intra operatively and Post operatively.

Intake/output chart showed no deficit.

Catheter was removed on 2^nd postoperative day and patient was passing urine normally at the time of discharge on 30.09.2014.

Patient has C/o. leakage of urine on 11.10.2014, to stop leakage she was catheterized and evaluated.  CT Urogram showed thin fistulous tract.

14. The opposite party categorically states that there is no breach of duty or of negligence.  Good care and professional skill was exercised in managing the case.  While attending on the patient doctor performed duty expected of a prudent doctor in similar circumstances.

15. The treatment given was as prescribed in text books.  Doctor had treated the complainant in accordance with the accepted practice of treatment with skill, knowledge and standard of care.

The complaint does not show any deficiency in the standard of care or in the degree of care.

There is no Contra opinion made or given by any one against the treatment given or pointing out any deficiency of service.

16. If there was an injury during the operation as alleged, leakage of Urine should have started on the table itself or from day1.  Whereas the patient was alright for 2 weeks.  Hence there is no injury during surgery.  Hence doctor is not liable for negligence. There is no cause of action.  The opposite party has not committed any omission or commission.  The alleged loss and damage is not due to any negligence deficiency or action of opposite party.  Hence this complaint is liable to be dismissed.

17.  In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1to ExA8 were marked.  While so, on the side of the opposite party, the proof affidavit is filed and Ex.B1(s) to Ex.B3(s) are marked on their side.

18. Written version filed by the opposite party in spite of giving sufficient opportunity neither the complainant nor her counsel has not come forward to file written version.  Further the complainant is continuously not appear for so many hearing and also filed to adduce oral arguments.

19. At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

20. Written argument has filed on the side of the opposite party and complainant not filed and oral arguments also heard on both sides.

 Point no:1:-

21. As per the averments of the complainant the allegations in the complaint is that the opposite partys hospital conducted the surgery for TAH/BSO and the same was done negligently and during surgery the urinary bladder of the complainant was damaged by knife and subsequently on admission in the Apollo Hospital for conducting further surgery and rectified the damage and thereby the complainant was constrained to spend a large sum of Rs.2,59,688/-

22. On the other hand, from the written version filed by the opposite party, it is contented that the allegations made in the complaint are all false and vexatious and in fact, it is true that the complainant undergone surgery for TAH with BSO but the surgery has been done with full due care of caution and there was no such injury found during the operation as alleged and therefore the Doctors who conducted the surgery has followed the correct procedure as prescribed in the Medical Text and there is no medical negligence on the part of the opposite party.   

23. At the outset, it is the duty of this Forum to decide as to whether the complainant has established the allegations made in the complaint against the opposite party by means of relevant and consistent evidence which is the foremost duty of the complainant.  First of all, on careful perusal of the evidence adduced by the complainant through the proof Affidavit, it is learnt that the complainant was admitted on 22.09.2014 at 2.00 P.M in the opposite partys hospital and as per the advise, they were taken several tests of laboratory given by the opposite party hospital is marked as Ex.A2(s).  The receipts for various tests and medicine issued by the opposite partys hospital is marked as Ex.A1(s).  Then as advised by the opposite party, the complainant undergone surgery on 28.09.2014 and discharged on 03.10.2014 and for that surgery the complainant has spent  a sum of Rs.74,745/- in which the discharge summary is marked as Ex.A3.

24. It is further seen that thereafter she was again having abdomen pain and continuous leakage of urine with blood and immediately the complainant went to the opposite partys hospital and then she was admitted 07.01.2015 and taken scans and other tests.  The serious of scan Report and other tests are marked as Ex.A4(s).  That on 08.01.2015 the complainant had undergone surgery and then she was discharged on 10.01.2015 and for which paid a sum of Rs25,000/- the discharge summary is marked as Ex.A5.  Then the complainant consulted the Apollo Hospital and they had conducted several tests and scans and advised for further surgery and it is stated that during the surgery, the urinary bladder of the complainant was damaged by knife conducted by Kaveri Trust Hospital and unless the injury in the urinary bladder is rectified, the complainants condition may be serious and also death may be happened.  Further, it is seen that the complainant admitted on 27.01.2015 in the Apollo Hospital and undergone surgery on 28.01.2015 and discharged on 29.01.2015 and for entire tests and operation she has incurred an expenses for a sum of Rs.2,59,688/-.  The test report along with cash bill given by the Apollo Hospital is marked as Ex.A6(s) and the bill series of receipt for the payment of amount paid for operation in the Apollo Hospital are marked as Ex.A7(s) and the discharge summary issued by the Apollo Hospital his marked as Ex.A8.

25. While being so, on going through the evidence adduced on the side of the opposite party, it is learnt that Doctor S.TAMILARASI who has conducted the surgery of the complainant is a Consultant Gynaecologist for the past fifteen years who has finished her MBBs in the year 1994 and also she is in Government service at Anna Nagar peripheral hospital.  Further, it is learnt that the complainant underwent only the diagnostic Cystocscopy, an investigative procedure on 08.01.2015 and all the serious allegations mentioned by the complainant are bald and have no legs to stand and in fact the complainant was never serious and she was only in normal ward.  It is further narrated in the evidence since the patient was Anaemic with poor general condition, patient was admitted for pre operative evaluation and preparation  for surgery and further taking of tests and scans and then only surgery was done on adopting all procedure as per the Medical tests and the patient was observed for three days, Drainage Tube was removed, Dressing changed and patient discharged in good general condition on 03.10.2014 and on the day for reviews, that is Diagnostic Cystoscopy on 07.10.2014,08.10.2014 and 09.10.2014 the complaint of leakage of urine and thereafter on 11.10.2014 the complainant was consulted to complaint of urine and patient was recatheterised and on 13.10.2014 CT Urogram and Cystogram was done which confirmed two thin Fistulous tracts between posterior wall of urinary bladder and vaginal vault that is Vesico Vaginal Fistula and the same was explained to the patient and again the patient reviewed on 07.01.2015 and admitted for Diagnostic Cystoscopy with retro grade pyelogram and the same was done on 08.01.2015 and patient was discharged with the advice to come for vesico vaginal fistula repair on 17.01.2015 but the complainant did not turn up. The copy of the case record of the complainant for which the first admission dated on 22.09.2014 and the copy of the case records in between admission dated 05.11.2014 &07.11.2014 are marked as Ex.B1(s)and Ex.B2(s) respectively.  The copy of the case records for 2 admission dated on 08.01.2015 is marked as Ex.B3(s).

26. It is further stated by the opposite party in his evidence that from the above documents Ex.B1(s) and Ex.B3(s) have clearly revealed the fact that there was no injury and no leakage of urine during the operation as alleged and she was alright for two weeks and further, the Doctor who was conducted the Surgery has followed the procedure for the said operation as per the Medical texts Books and thereby no negligence committed as alleged by the complainant.

27. At this juncture, on careful perusal of the rival submissions put forth on either side, it is crystal clear that there is no dispute with regard to the consultant and admission of the complainant for certain problems and several tests were taken by the opposite party hospital.  Similarly it is not disputed that the complainant is admitted on 22.09.2014 for surgery which was done on 28.09.2014 and was discharged on 03.10.2014 and for the amount of Rs.74,745/- has been paid by the complainant towards treatment and in respect of the fact, Ex.A1 to Ex.A3(s) and Ex.B1(s) are the relevant documents have been produced on both sides which are all admitted fact.

28. It is further seen from the evidence that since because of the leakage of urine from the vegina the complainant was consulted with the opposite party hospital on 11.10.2014 the CT Urogram and Cystogram was done on 13.10.2014 and which confirmed for Vesico Vaginal Fistula and for which the patient was reviewed on 07.01.2015 and admitted for performing Diagnostic Cystocscopy surgery on 08.01.2015 and the same was done and discharged with advice to come for Vesico Vaginal Fistula repair on17.01.2015 these facts are all also admitted on both sides.

29. It is admitted by both sides that after the said advice for Vesico Vaginal Fistula repair, the complainant did not turn up to the opposite party hospital but she herself voluntarily want and consulted with the Apollo Hospital and there surgery was conducted on 28.01.2015 and discharged on 29.01.2015 (Ex.A6(s) to Ex.A8).  At the outset, the main point has to be taken into consideration as to whether any Medical negligence committed by the Doctor T.Tamilarasi who has  conducted the surgery to the complainant.

30. As per the averment of the complaint in para no.6 and the proof Affidavit that, as whether the urinary bladder of the complainant was damaged by knife at the time of surgery conducted by the opposite party hospital and the same was due to the mistaken and negligence of the Doctor who conducted the surgery in the opposite party hospital as said by the Apollo Hospital Authority.  On this allegation, with due care and caution going through the documents Ex.A8 which was issued by the Apollo Hospital it is found that there is not a single word about the mistake and negligence of the opposite party hospital about the alleged injury which was damaged by knife at the time of conducted the surgery by the opposite party hospital.  Further, it is categorically noted in the Ex.A8 that the date of admission in the Apollo Hospital 27.01.2015 and the date of Surgery 28.01.2015 for CYSTOSCOPY+INTUBATION OF FISTULA+BILATERAL STENTS+REBOT ASSISTED LAPAROSCOPIC REPAIR OF VVF and discharged on 29.01.2015.  More so, on going through the operation note also there is no mentioning about the injury which was caused by the knife used by the Doctor who in the opposite party hospital during operation.  Similarly, there is no iota of evidence to show that, unless the injury of the urinary bladder is rectified the complainants condition may be serious and also death may be happened.  Also on perusal of the Ex.A6(s), the test report reveals the same facts what has confirmed in the Ex.A4(s) which was issued by the opposite party hospital.  Therefore, it is crystal clear that there is no iota of the evidence on the side of the complainant to show that the injury in the urinary bladder was damaged by knife at the time of the surgery conducted by CAUVERY TRUST HOSPITAL.  It is further seen that for if it is taken as true argument sake, that in the version of the complainant if there is an injury during the surgery as alleged the leakage of urine should have started on the table itself or from day one but it is not so and in fact, the complainant was alright for two weeks.  Further, as per the Ex.B2(2) and Ex.B3(s) the leakage of urine happened only after three months due to the Vesico Vaginal fistula which is commonly knowing complication as per Medical Test whenever anybody undergone the alleged surgery in the complaint.

31. At the outset, on careful steadying of the medical text Books placed on the side of the opposite party, it is clearly mentioned that the Vesico Vaginal fistula has happened which is a commonly knowing complication during the operation for Diagnostic Cystoscopy that is Vesico Vaginal Fistula.  In this regards the opposite party also cited the decision in the 1999 (2) CPR page 386,in which  The Batna State Consumer Disputes Redressal Commission held in the case of Dr.Rameshwar, P.D.Agarwal -Appellant (Vs) Md.Abbas Ansar- Respondent of VVF was a known complication which could not have been deducted at the time of hysterectomy.  It is further held that when it is a complication occurred later in point of time, negligence cannot be attributable and the another decision NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI.  Prem Bala (Vs) Dr.Mrs.Satinder Saluja placed by the learned counsel of the opposite party in which, it is held that (2005 (2) CPR 2016) that the urine leakage is not immediate after discharge after operation, the principle of IPSA loguitor cannot be applied (2002 (3) CPR254 (NC).

32. At this juncture, in the instant case on hand the complainant discharged in a satisfactory condition with no complaints of leakage of urine during the post operative reviewed on 07.10.2014 and 09.10.2014, it is obvious that it occurred because  the complainant had not followed the post-operative medical advice given to her by the opposite party hospital.

33. In the light of the above other facts and circumstances, evidences adduced on both sides by means of ExA8,Ex.B1(s) and ExB3(s) and observations made in the decisions and the Medical test text books placed on the side of the opposite party, this Forum held that the opposite party has not committed any Medical negligence in conducting the operation to the complainant for the alleged surgery.  Thus the point No.1 is answered accordingly.

Point No:2:-

34. In view of the conclusion arrived in the point No:1, the complainant is not entitled for any relief as pray for in the complaint.  Thus the point No.2 is answered accordingly.

In the Result, this complaint is Dismissed. No Cost.

This order was dictated by the president to the steno-typist, typed by him, corrected, signed and pronounced by us in open Forum, today on this day 21^st of August.

    -Sd-                                                                                         -Sd-

 MEMBER                                                                       PRESIDENT.

List of documents filed by the complainant.

 List of document of the opposite party:-

                    -Sd-                                                                                        -Sd-

                 MEMBER                                                                           PRESIDENT.