DATE OF FILING : 12.08.2009

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30th day of January, 2010

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.131/2008

Between

Complainant : Pushpa Rajan,

Vellappallil House,

Eettithoppu P.O,

Pin 685 510,

Idukki District.

(By Adv: V.C.Sebastian)

And

Opposite Parties : 1. The Director,

St.John's Hospital,

Kattappana P.O,

Idukki District.

(By Advs: Sijimon.K.Augustine & Baby Joseph)

2. The Administrator,

St.John's Hospital,

Kattappana P.O,

Idukki District.

(By Advs: Sijimon.K.Augustine & Baby Joseph)

3. Dr.Mathew Koshy,

Gynaecologist,

St.John's Hospital,

Kattappana P.O,

Idukki District.

(By Adv:Benny Joseph)

4. Dr.Sekhar,

Urologist,

Periyar Hospital,

Kumily P.O, Kumily.

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

On 7.04.2008 the complainant approached the opposite party hospital and as per the direction of the opposite party, she consulted Dr.Mathew Koshi. After preliminary examination the doctor advised to remove the uterus by a surgery and it was fixed on 17.04.2008. X-ray, ECG, ECO, TMT etc. were done for the same. The operation was also done on the same day as fixed. After 3 days of the operation, the patient continued severe pain and hardships, so the doctor prescribed several medicines to the patient, but there was no effect. On 21.04.2008 the opposite party conducted an ultra sound scan and told that there was nothing serious to the complainant. The complainant requested for the discharge on 22.04.2008 but the opposite party injected with a specific medicine and 8 X-rays of the complainant were taken within 2 hours. But the reason for the pain was not diagnosed. After that they directed to consult the Urologist. So on 24.04.2008 without the consent of the complainant and her husband she was undergone an operation. The compulsory consent was received from the complainant by the Urologist Dr.Sekhar and Dr.Mathew Koshi. Again the consent of her husband was received by stating that anaesthesia was given to the patient. After the operation, the reason for the second operation was enquired by the relatives of the complainant, the opposite party replied that the tube going to the kidney was not open, so it was done. After that on 8.05.2008 the patient was discharged from the hospital but she was affected with fever and infection. So she was admitted in Lissie Hosital, Ernakulam on 10.05.2008. X-ray and scanning were done from there and it was revealed that there was no disease caused to the kidneys. The doctor there told that it may be because to cure the defect in the first operation that the second operation was conducted. After 6 days of inpatient treatment she was discharged with a direction to readmit there on 4.06.2008. On 5.06.2008 again an operation was conducted to remove the tube and the patient was discharged with urine bag. The details of treatment report of the Lissie Hospital were not received because of the influence of the Ist opposite party hospital. The pain was not reduced evenafter 68 days, so the complainant was admitted in Medical College Hospital, Kottayam for the removal of urine bag. On the first day when the complainant approached the opposite party for the operation, Dr. Mathew Koshi told that the expenses of the operation comes around Rs.10,000/- and the patient can be discharged after 5 days. The injury to the tube reaches to the kidney was not considered by the opposite party and a second operation was conducted which is a gross negligence on the part of the opposite party, the complainant spent Rs.37,099/- at the opposite party's hospital and Rs.7,096/- in Lissie Hospital, Ernakulam and spent Rs.8,500/- for the expenses for the treatment in Medical College, Kottayam. So this petition is filed for getting compensation for mental agony and hardships caused to the complainant because of the negligence of the opposite parties.

2. As per the written version filed by the Ist and 2^nd opposite parties, they never directed the complainant to consult with Dr.Mathew Koshi as alleged in the complaint. In Gynaecology Department itself more than four doctors are working in St.John's Hospital and the complainant herself selected Dr.Mathew Koshi as her doctor. The complainant was admitted in St.John's Hospital and as per the treatment sheet operation was conducted to remove the uterus with the consent, knowledge and concurrence of the petitioner and her husband. The operation was properly done by Dr.Mathew Koshi, Gynaecologist and Dr.Shekhar, Urologist, who are well experienced and qualified doctors. So far no complaints were reported from any corners against the said doctors. There is no negligence caused at the time of operation as alleged by the complainant. What all treatments are done in Lissie Hospital etc. are known only to the complainant herself and are to be strictly proved by the complainant herself. The allegation that the treatment reports from Lissie Hospital are not obtained due to the intervention of these opposite parties are false. The opposite parties' hospital is a well equipped hospital having all departments and several well equipped

operation theatres with qualified doctors. The complainant has not caused any damage or loss due to any fault of these opposite parties. The demand of Rs.1,25,195/- is highly exorbitant, baseless and ill founded. There is no negligence or carelessness as alleged from the part of these opposite parties and they are not at all liable to pay any amount towards the complainant.

3. As per the written version filed by the additional 3^rd opposite party Dr.Mathew Koshi, the complainant was treated and operated with due care and caution. There is no wilful latches, negligence or carelessness in the treatment of the complainant or at the time of operation or in the event of detecting the disease. In Gynaecology department itself more than four doctors are working in St.John's Hospital and the patients at their-own choice selects their doctors and accordingly the complainant selected Dr.Mathew Koshi as her doctor. It is true that the complainant  was admitted at St.John's Hospital and as per the treatment chart, operation was conducted on 17.04.2008. Hysterectomy(removal of uterus) was done with the consent, knowledge and concurrence of petitioner and her husband. As per the leading texts, injury to pelvic ureter is one of the most serious possible operative complications of gynaecologic surgery. There is a greater risk of renal function impairment in ureteric injuries as compared to bladder injuries, since less than half of all ureteric injuries are identified at the time of surgery. Hysterectomy is one of the frequently performed gynaecological surgical procedures. Operative injuries to the urinary tract occur in the course of gynaecological procedures due to the close development and proximity of the urogenital systems. It has been reported that 52% to 82% of operative ureteric injuries occur during gynaecologic surgery. Most of these injuries occur during the performance of hysterectomies. Ureteral injuries have been reported in 1.3% to 2.2% of abdominal hysterectomies. So the detection and curing of the above said probable complication within a reasonable time is the thing to be done by a doctor. Doctors are also human beings and all the operations are having its own risk. In the case of the complainant, it is only a coagulation injury to the ureter, which cannot be detected at the time of hysterectomy surgery. Removal of uterus is done after coagulation of surrounding sides, otherwise bleeding will occur. Intraveneous pylogram, cystoscopy and endoscopy are the accepted tests to detect the problem. That was correctly done by taking step X-rays as revealed from the complaint itself. Moreover the Gynaecologist doctor, who treated the complainant availed the service of an expert Urologist for management and second opinion at the time when he suspected a problem. So there is no deficiency or negligence from the part of the treated doctors. Immediately on detecting the coagulation injury by the above said tests, endoscopic stent insertion was attempted and reimplantation of ureter was done, which is the accepted correct treatment. Stent insertion is done to allow free flow of urine through the coagulation injury portion and thereby to correct it. The stent has to be removed after one month, and within that period, the injury will heal and regain it to the normal position. Complainant did not report in the hospital for removal of the stent after the heal of injury, instead of that she got it removed from Lissie Hospital. At the time of discharge she was alright and no further treatments are done from any of the hospitals as alleged. The allegation that the petitioner is undergoing treatments from Medical College, Kottayam is to be proved by the complainant by documentary evidence. The operation was properly done by Dr.Mathew Koshi and Dr.Sekhar, Urologist, who are well experienced and qualified doctors and are having years of experience and are specialised in Gynaecology and Urology respectively. The further allegation that the operation was conducted without the knowledge and permission of the complainant and her husband is false. The allegation that the signature of the complainant and her husband is obtained by force also denied. The Ist opposite party hospital is a well equipped hospital having all departments and several well equipped operation theatres with qualified doctors. The complainant has not caused any damage, loss or any disability due to any fault of these opposite

parties. The calculation of travelling expense, other expenses and damages for mental agony etc. are irrational, arbitrary, exorbitant and baseless. So the complainant is not at all entitled to get any relief against these opposite parties.

4. As per the written version filed by the Additional 4^th opposite party, it is stated that the opposite party is a consultant Urologist, working at St.John's Hospital as a part-time doctor on all Thursdays. On 24.04.2008 the IVP films of Mrs.Pushpa Rajan, a patient who had undergone abdominal Hysterectomy on 17.04.2008 was consulted and were seen by him. The films showed delayed function and poor drainage of right Kidney. After obtaining necessary informed written consent from the patient, her husband, and sister-in-law for Cystoscopy and if required for an exploratory Laparotomy, the patient was shifted to Operation Theatre. Under general anaesthesia Cystoscopy was performed. It showed no urine output from the right kidney. Guide wire was passed via right ureteric orifice but went upto 1 cm only. So they decided to explore the ureter. Since Mrs.Pushpa Rajan was under general anaesthesia, it was explained to her husband and her relatives, the status after cystoscopy and decided to proceed with exploratory laparotomy for necessary repair and corrections. Via right iliac incision retro-peritoneum was approached, right ureter identified which was found dialated upto the lower end. We identified that the ureter was caught in the uterine pedicle. So ureteric reimplantation was done over a DJ stent. Post operative period was uneventful. Mrs.Pushpa Rajan was discharged on 8.05.2008 with the advice to come after 15 days or earlier if required. Otherwise if no complaints noticed, advised to consult for removal of the stent after 30 days. But she did not turn up for follow up. This opposite party treated the complainant with utmost care and caution. There is no negligence, wilful latches or deficiency of service from the part of this opposite party. When they approached for a second opinion, this opposite party gave it and done whatever is required. This opposite party is not at all liable to pay any amount towards compensation or damages to the complainant. The demand of Rs.1,25,195/- is highly exorbitant, baseless and ill founded. The calculation of travelling expense, other expenses and damages for mental agony etc. are irrational, arbitrary, exorbitant, baseless and without any factual foundation at all. The complainant is not entitled to get any relief against this opposite party. Hence the petition may be dismissed.

5. The evidence consists of the oral testimony of PWs 1 and 2 and Exts.P1 to P7(series) and MO-1 and MO-2 marked on the side of the complainant and the oral testimony of DW1.

6. The POINT :- The complaint is filed against the negligence in service of the doctors of the opposite party hospital, who conducted an operation for removing the uterus of the complainant. A second operation was also conducted by the opposite party without the consent of the complainant, in order to cure the defect caused in the first operation.

7. The points for consideration are (1) whether the consent of the patient was given ? and (2) whether there was any negligence from the part of the opposite parties, and if so, what compensation can be given to the complainant ?

8. The complainant was examined as PW1. The discharge summary of the opposite party hospital is marked as Ext.P1(series). On 7.04.2008 PW1 approached the opposite party hospital and requested to consult the Gynaecologist there. The opposite party hospital issued a ticket for consultation of Dr.Mathew Koshi. The details of illness were told to the said doctor and she was admitted and treated by the said doctor. At the time of consultation, the doctor offered, the operation for removing the uterus of the patient can be done with an expense of Rs.10,000/- and 5 days I.P was only needed for the same. The first operation was conducted on 17.04.2008. After 3 days of the operation, pain was not reduced and this matter was reported to the nurses in the duty room. But no treatment was done by them after repeated requests. On 21.04.2008 scanning was conducted by the opposite party and told that there was no complaints to PW1. But the pain was not at all decreased and so PW1 suspected that there was something wrong happened to her. So they asked for discharge from the hospital. But the opposite party continued various tests on the complainant. On 24.04.2008 some specific medicines were injected to the complainant and 8 X-rays were taken within 2 hours. Then the 3^rd opposite party directed to meet the Urologist, Dr.Sekhar who is the 4^th opposite party. The complainant was admitted in the operation theatre for examination of the 4^th opposite party. The opposite party told to the complainant that she was admitted in the operation theatre only for interior examination of the patient with light. After when the patient was admitted in the operation theatre, opposite parties 3 and 4 compulsorily got signature of the patient as consent for the operation. It is a serious negligence from the part of the opposite party that the consent of the patient was got compulsorily after admitting in the operation theatre even after 7 days from the first operation. The consent of the husband was received compulsorily, telling that the patient was given anaesthesia for operation. Eventhough PW1 requested for a discharge, it was denied by the opposite party because they feared that the defect of the first operation would be known to the other hospitals.

9. Before conducting the operation, the doctors usually advices the patient to keep MPO, not to take any food. But in this case there was no such direction was given to the patient by the doctor or any nurses. So the complainant consumed coffee in the morning on 24.04.2008. The decision for the operation was not informed to the patient before admitting to the operation theatre. If it was informed earlier PW1 would have approached in any other hospital. But no complaint was given to Ist or 2^nd opposite parties by PW1 about the doctors who conducted the operation without the consent of PW1. The 4^th opposite party is a well known Urologist in Kerala. He comes only once in a week in that hospital. In cross examination of the learned counsel for the opposite parties, PW1 deposed that Rs.5,000/- was deducted by the opposite party at the time of paying the bill. After the second operation also the patient was treated in this hospital. One delivery of the patient was also done in this hospital. The complication of the operation was explained to the patient by the doctor. Pain was started only after 3 days. The complainant as PW1 signed in the consent for operation only after seeing the signature of the husband of the complainant and she thought that there was some reason for the consent given by the husband.

10. There is no complaint against the 4^th opposite party doctor, because the second operation was done by the doctor. But the matter was not informed to the complainant. The discharge chart given from the Lissie Hospital is marked as Ext.P2(series).The treatment records of the Medical College, Kottayam is marked as Ext.P3(series). Ext.P4 bills were issued from the opposite party hospital and the original bill from the Lissie Hospital is marked as Ext.P5(series).After the discharge from the opposite party hospital, the complainant approached at Lissie Hospital, Ernakulam for further treatment. PW2 is the husband of the complainant. PW2 deposed that the pain was not reduced after 3 days of the operation of PW1 and the matter was informed to the duty nurses by PW2, but they gave injection for sedation. No further treatment was done. A complaint was given to the Ist opposite party, Nursing Superintendent. On 21.04.2008, scanning was conducted and told that there was no complaint for the patient. Discharge was not given as per the request of PW2. Series of X-rays were taken after giving injection to the patient on 24.04.2008. After that the 3^rd opposite party directed to meet the 4^th opposite party. The duty nurses told the husband of the complainant to sign in the consent letter. PW2 denied the same. They told that anaesthesia was given to the patient and so he signed in the consent letter. They told that it was only for internal examination of the patient with light, she was admitted in the operation theatre. The patient has consumed food in the morning. There was no emergency for an immediate operation. The 3^rd opposite party told that the tube going from the kidney was folded and so the second operation was conducted. Rs.5,000/- wad deducted from the bill, at the time of paying the bill.

11. After that the patient is under treatment of Dr.Suresh Bhat at Medical College, Kottayam. The second operation was conducted only because of the negligence of the 3^rd opposite party. In MO-1 series X-rays, the tube going from the kidney to the urinary bladder is not visible. But in MO-2 X-rays, it is visible. Copy of the treatment chart from St.John's Hospital is marked as Ext.P7(series).

12. The 3^rd opposite party was examined as DW1. As per the treatment chart, operation was conducted on 17.04.2008. Hysterectomy,(removal of Uterus) with the consent, knowledge and concurrence of the petitioner and her husband. As per the leading texts, injury to pelvic ureter is one of the most serious possible operative complications of gynaecologic surgery. There is a greater risk of renal function impairment in ureteric injuries as compared to bladder injuries, since less than half of all ureteric injuries are identified at the time of surgery. So the detection and curing of the above said probable complication within a reasonable time is the only thing to be done by a doctor. In the case of the complainant, complaints of pain in abdomen was reported on 21.04.2008, 3 days after the operation and it was correctly detected on 23.04.2008 and corrected it by a surgery on 24.04.2008 by an expert Urologist doctor. Doctors are also human beings and all the operations are having its own risk. In the case of the complainant, it is only a coagulation injury to the ureter, which cannot be detected at the time of hysterectomy surgery. Removal of uterus was done after coagulation of surrounding sides, otherwise bleeding will occur. Intravenous pylogram, cystoscopy and endoscopy are the accepted tests to detect the problem. That was correctly done by taking step X-rays as revealed from the complaint itself. Moreover, the Gynaecologist doctor, who treated the complainant availed the service of an expert Urologist for management and second opinion at the time when he suspected a problem. So there is no deficiency or negligence from the part of the treated doctors. On 24.04.2008 the IVP films and other test results were seen by Dr.N.B.Sekhar, Urologist, who identified delayed function and poor drainage of right kidney. After obtaining necessary informed written consent from the patient, her husband and sister-in-law for cystoscopy and if required for an exploratory Laparotomy the patient was shifted to operation theatre. Under general anaesthesia cystoscopy was performed. It showed no urine output from the right kidney. Guide wire was passed via right ureteric orifice but went upto only 1 cm. So the Urologist decided to explore the ureter. Since Mrs.Pushpa Rajan was under general anaesthesia her husband and her relatives were explained the status after cystoscopy and decided to proceed with exploratory laparotomy for necessary repair and corrections. Via right iliac incision retro-peritoneum was approached, right ureter identified which was found dialated up the lower end. The doctors identified that the ureter was caught in the uterine pedicle. So ureteric re-implantation was done over a DJ stent. Post operative period was uneventful. Mrs.Pushpa Rajan was discharged on 8.05.2008 with the advice to come after 15 days or earlier if required. Otherwise if no complaints noticed, advised to consult for removal of the stent after 30 days.

- Whether the consent of the patient was received before the second operation ?

13. DW1 deposed that after the operation on 17.04.2008, the patient reported complaint of pain only on 21.04.2008. No such complaint was reported before that day. Scanning was conducted on 22.04.2008 and it was suspected that there was ureteric injury. So on 23.04.2008 IVP(serial X-rays) were taken and the matter was confirmed. So they fixed another operation to cure the same with an expert Urologist Dr.Sekhar on 24.04.2008. DW1 was also assisted the doctor. The first operation was done with spinal anaesthesia, which means the patient made partially unconscious. But the second operation was done with general anaesthesia, which means the patient made fully unconscious. Clear, real and valid consent was needed for the operation and it was got before the operation. The doctor was not witnessed at the time of giving consent by the patient and her husband. Nurses got consent of the patient. The patient was admitted in the operation theatre for cystoscopy plus exploratory laparotomy. The consent was received for the same. The operation was an emergency one. In Ext.P7(series), which is the treatment chart of the opposite party hospital in which in page 23 in Nurses record of the patient, it is written that on 23.04.2008 at 6.30 p.m, “case seen by Dr.Mathew Koshi and advised to kept the patient Nil Per Oral(NPO) from 10 pm and in the Nurses Record on 24.04.2008 it is written at 8.55 am “case seen by Dr.Mathew Koshi, advised to urology consultation, kept the patient in Nil Per Oral(NPO)”.

14. So the allegation of the PW1 that the doctor was not advised the patient before the operation that fasting was needed on the day before the operation cannot be believable. Ext.P7(series) reveals that the doctor advised to keep the patient NPO before the operation. Ext.P7(series) was not challenged by the counsel for the complainant. But the consent letter was signed by the complainant and her husband. The doctor deposed that the doctor is not the person who gets the consent from the patient. In Ext.P7(series), in page Nos.9 and 10, PW1 and PW2 were signed as the consent for the operation on 17.04.2008 and on 24.04.2008. The name and address of both the parties were written on that paper. In Ext.P7(series) in page No.10, which is a consent letter in which the consent of the patient is written in her own handwriting. Signature and address of the patient were also written, 2 witnesses were also signed in that paper. One of the witnesses is Mr.V.K.Rajan who is the husband of PW1, his name and address are also written in his own handwriting. Another witness is one “Anandavally”, who is the sister-in -law of the patient, her address is also written, which is dated 24.04.2008. These matters were not challenged by the counsel for the complainant. So we think that the consent for the second operation was also given by PW1 and PW2 without any dispute. As per PW1 and PW2, the second operation was conducted to cure the defect caused to the first operation.

- So whether any negligence caused from the part of the opposite parties ?

15. No expert evidence is adduced by the complainant to prove that there is some negligence caused in the operation conducted by the 3^rd opposite party. But DW1 admitted that ureteric injury was detected in the first operation after conducting tests and investigation, on 23.04.2008 which was confirmed. So they decided to conduct the second operation and the matter was intimated to the patient and to her husband also. IVP (serial X-rays)were taken and scanning was done to detect the injury caused to the complainant. It was cured by another operation by an expert doctor. The defect was cured and the patient was discharged on 8.05.2008 with the advice to come after 15 days or earlier if required and advised to come for the removal of stent after 30 days. But the complainant did not report in the hospital for removal of the stent after the heal of injury, instead she got it removed from Lissie hospital. In Ext.P2(b), the treatment records from the Lissie hospital, it is written that no evident abnormality detected. In Ext.P3(c), Scanning Report from the Medical College, Kottayam, where the complainant was treated by Dr.Beena Sebastian, it is written that no abnormalities identified. It means that the patient is completely cured after the operation.

- What compensation can be awarded ?

16. The second operation was conducted on the patient only because to cure the injury caused to the patient in the first operation. That matter was also admitted by the opposite party eventhough it was not by the deliberate negligence from the part of the opposite party. So general anaesthesia was given to the patient for the second operation. But the first operation was conducted by spinal anaesthesia. So the patient has suffered severe mental agony and physical pain, the treatment expenses of the patient was also increased. So the opposite party gave a reduction of Rs.5,000/- at the time of paying the bill. It means that there is some injury was caused to the patient and it may be true that the complainant and his family suffered much mental agony and physical pain because a major second operation was conducted after 7 days of the first operation. But whether there is any negligence caused from the part of the opposite party doctor is not proved by any expert evidence or any expert doctor. As per the opposite party, this type of injuries are probable in case of surgeries in gynaecology. PW1 deposed that at the time of consulting the 3^rd opposite party, he told that the operation for removal of uterus(Hysterectomy)will cost only Rs.10,000/- and 5 days bed rest is only needed for the same. But the bill issued from the St.John's Hospital, Kattappana was very hike and this matter is not disputed by the opposite party. So we think that the complainant paid a huge amount for the two operations and mental, physical sufferings were also caused to the complainant. So Rs,25,000/- can be awarded for the same.

Hence the petition allowed. Opposite parties 1 to 3 are directed to pay Rs.25,000/- with 9% interest from 12.08.2008, the date of this petition and Rs.,2000/- as cost of this petition to the complainant within one month of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 30^th day of January, 2010

Sd/-

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

I agree SMT.SHEELA JACOB(MEMBER)

Sd/-

I agree SMT.BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - Pushpa Rajan

PW2 - V.K.Rajan

On the side of Opposite Parties :

DW1 - Dr.Mathew Koshy

Exhibits:

On the side of Complainant:

Ext.P1(series) - Photocopy of Discharge Summary issued by the opposite party hospital

Ext.P2 - Photocopy of Discharge Summary issued by Lissie Hospital, Ernakulam

Ext.P3 - Photocopy of Treatment Records of Medical College, Kottayam

Ext.P4(series) - Medical Bills(59 Nos) issued by the opposite party hospital

Ext.P5(series) - Medical Bills(20 Nos) issued by Lissie Hospital, Ernakulam

Ext.P6(series) - Medical Bills(3Nos)

Ext.P7(series) - Photocopy of Treatment Chart issued by the opposite party hospital

On the side of Opposite Parties:

Nil