IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA

Dated this the 21st day of January, 2011.

Present : Sri. Jacob Stephen (President)

Smt. C. Lathika Bhai (Member)

Sri. N. Premkumar (Member)

C.C.No.127/05 (Filed on 29.08.2005)

Between:

1.     Manoj. P. George,

Parappattu House,

Thonniamala.P.O.,

Pathanamthitta.

2.     Simi Manoj,

W/o. Manoj. P. George,

     -do.  –do.

(By Adv. S. Ajith Prabhav)                                         .....     Complainant.

And:

1.     Administrator,

Pushpagiri Medical College Hospital,

Thiruvalla – 689 101.

(By Adv. G.M. Idiculla)

2.     Dr. Laila, Gynecologist,

                -do.  –do.

(By Adv. P.K. Mathew)

3.     Dr. Susan, Gynecologist,

Dept. of Gynecology & Obstetrics,

          -do.  –do.

Addl.4. New India Assurance Co. Ltd.,

              Salia Building, Near Head Post Office,

              M.C. Road, Changanacherry.

Addl. 5. The Branch Manager,

                New India Assurance Co. Ltd.,

                Changayil Buildings,

                College Road, Pathanamthitta.

(By Adv. Sam Koshy)                                                  .....     Opposite parties.

O R D E R

Sri. Jacob Stephen (President):

                   The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.

                   2. The complainant’s case is that 2^nd complainant is the wife of the 1^st complainant.  The 2^nd complainant had undergone D & E for Missed Abortion at Pushpagiri Medical College Hospital as I.P.No.400502 on 3.2.05 and she was discharged on the very same day with advice to take rest for few days.  From the next day onwards she felt pain.  Then the doctors were contacted and they pacified that there is nothing to bother and warrants no further investigation.  After 10.2.05, the complainant could not tolerate the severe pain and the pain reliefs suggested by the opposite parties 2 and 3 shown no response.  Therefore, on 14.2.05, she got admitted at the said hospital as I.P.No.52408.  On 15.2.05, D & C was done as per the advise of the duty doctor by opposite parties 2 and 3.  But for the next 2 days there was no improvement to the complainant’s condition and on 17.2.05, the 2^nd complainant was again taken to the operation theatre and the major doctors including the surgeon were called.  On 17.2.05, the complainant and the bystanders were understood that the reason for the severe pain of the complainant was due to the perforation of the uterus and the sigmoid colon caused during the D & C done on 15.2.05.  The abdomen X-ray also showed the signs of peritonitis.  The said complications was due to the negligence of the 2^nd and 3^rd opposite parties.  Though the unfortunate incident occurred on 15.2.05, the doctor attended the patient only on 17.2.05.  Due to the injury caused to the sigmoid colon, an artificial anus by way of surgical creation was made on the abdominal wall.  This state of affairs was so panic that the complainant had to undergo much discomforts.  This discomfort is apart from the physical and mental agony of the complainant who was aged only 25 years.  The complainant’s first baby is at the tender age and due to the unfortunate event, the daughter also was deprived of her natural right to have the mother’s feed and care.  Thereafter, the complaint got admitted in the Amritha Institute of Medical Science, Ernakulam for further treatments.  Opposite parties 1 to 3 had failed to take reasonable and even the minimum care and that they failed to do so which resulted in much agony to the complainant and the opposite parties are liable to the complainant for their deficiency in service.  Hence this complaint for the realisation of `62,551.41, the amount spent for medical treatment consequent the negligence of the opposite parties along with compensation of `1,50,000 for the mental and physical agony suffered by the 2^nd complainant.  The complainants also prays for the cost of this proceedings.

                   3. On the basis of the version submitted by the 1^st opposite party, the New India Assurance Co. and its Branch Manager were impleaded as additional opposite parties 4 and 5.

                   4. The 1^st opposite party filed a separate version, 2^nd and 3^rd opposite parties filed a common version and the additional 4^th and 5^th opposite parties also filed their version.

                   5. The main contentions in the version of the 1^st opposite party is as follows:-  The 1^st opposite party submitted that there is no negligence on the part of the hospital as it has all the facilities and qualified doctors to attend and treat the patient.  The detailed version regarding the treatment and the consequence thereof have been already filed by the 2^nd and 3^rd opposite parties and it is to be read as part of this version.  The 1^st opposite party is insured with the New India Assurance Company and the said policy was in force at the time of treatment of the complainant.  With the above contentions, they prayed for the dismissal of the complaint with compensatory cost to them.

                   6. The main contentions of the 2^nd and 3^rd opposite party is as follows:-  They admitted the treatment of the complainant from 2.2.05 onwards.  The patient was admitted on 2.2.05 for the confirmation of missed abortion and on the diagnosis by USG she was advised for D & E, which is the medically admitted standard procedure for the diagnosed condition.  After conducting D & E, the patient was discharged on 3.2.05 with antibiotics and other necessary drugs since the patient had no complaints or findings suggestive of any complication.  She was also advised for review after two weeks or earlier if she had any complaint.  The patient reported with complaint of abdominal pain on 11.2.05.  Since she did not have any other problem she was given antibiotics and anti-inflammatory drugs.  She was also advised for USG.  But she went home on volition saying that she would be back if she is not relieved from pain despite the medicines.  The complainant have suppressed the fact of consultation on 11.2.05 and the advise of the 3^rd opposite party to take USG to trace out the cause of abdominal pain.  After 3 days, i.e.14.2.05 she came to the hospital and underwent USG and it indicated retained products in the uterus.  So she was taken for a 2^nd D & C on 15.2.05 and after the 2^nd procedure the patient was shifted to post operative ward and kept under proper care and observation.  In the postoperative ward the patient have been kept under close monitoring with keen attention of the doctors and nursing staff.  On 17.2.05 on the basis of the complaint of abdominal pain an X-ray of abdomen was taken it showed gas under diaphragm and on the basis of this indication in the X-ray this opposite parties suspected bowel injury and an immediate surgical consultation was taken.  A laparotomy was conducted on 17.2.05 with due care and caution by the 2^nd opposite party assisted by the General Surgeon Dr. John Joseph.  During the procedure an injury on the posterior aspect of the uterus was found and a rent in the sigmoid was also present.  The laparotomy findings warranted the need of undertaking loop colostomy.  The situation was properly explained to the relatives of the patient and with the written informed consent loop colostomy was done with due diligence.  The patient was advised elective closure of the colostomy at a later date, but the patient and relatives were not willing for the procedure to be done at the 1^st opposite party hospital.  The patient opted for further treatment at Amritha Hospital, Kochi and voluntarily got discharged from the 1^st opposite party hospital.  The patient was also given a proper reference letter at the time of discharge.  There was no definite evidence of perforation till 17.2.05 and post operatively the general condition of the patient was good.  The complainants were fully aware of the fact that in case of previous cesarean section and previous D&C the risk of preservation was higher while removing the retained products adherent to the surgical uterine scars and bowel injury could occur in uterine perforation due to its close proximity.  What all complications developed to the complainant is medically accepted and known-complications.  The treatments and the surgical procedures done to the complainant is also medically accepted and warranted in the case of the complainant.  This opposite parties has not committed any negligence or deficiency in service to the complainant.  Perforation of the uterus is a non-complication of D & C and the risk of perforation is especially higher in cases having surgical scars in the uterus on account of previous LSCS and MTP and it is medically accepted also.  All the allegations against the opposite parties are false and baseless and hence denied.  The 2^nd and 3^rd opposite parties have exercised reasonable degree of skill and care through out the treatment of the complainant as could be expected from a reasonable and qualified gynecologist in identical circumstances.  The 2^nd and 3^rd opposite parties are well qualified and experienced gynecologists and the 1^st opposite party is a well equipped hospital with all modern facilities to treat similar cases as that of the complainant.  Opposite parties are not liable to the complainant and the complainant is not entitled to get any of the relief prayed for in the complaint.  With the above contentions, the 2^nd and 3^rd opposite parties prays for the dismissal of the complaint.

                   7. The main contentions of the additional 4^th and 5^th opposite parties is as follows:-  This opposite parties admitted the issuance of the policy in favour of the 1^st opposite party.  As per the said policy the limits indemnity is 5 lakhs for any one accident/incident.  The benefit under the policy can be extended only if the insured is complied with the terms of the policy.  The opposite party had not reported the alleged incident as stipulated in the policy.  This opposite party came to know of the claim only after the receipt of the notice of this Forum.  From the available information, the claim of the complainant is not tenable.  The doctors treated the complainant are experience in the field and no elements of negligence can be attributed on them.  The treatments provided by the opposite parties were correct and the same leaves no room for any deficiency in service.  With the above contentions, this opposite parties also prays for the dismissal of the complaint with their costs.

                   8. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?

                   9. The complainant’s evidence consists of the oral deposition of PW1 based on the proof affidavit of the 2^nd complainant and the oral deposition of PW2 and Exts.A1 to A8.

                   10. The evidence of opposite parties consists of the oral depositions of DW1 and DW2 based on the proof affidavits of opposite parties 2 and 3 and the oral deposition of DW3 and the proof affidavit of opposite parties 4 and 5 and Exts.B1 to B3.  After closure of evidence, both sides were heard.

                   11. The Point:-  The complainant’s allegation against opposite parties 1 to 3 is as follows:-  Due to the negligent treatment of opposite parties 2 and 3 at the 1^st opposite party hospital, the 2^nd complainant has sustained an injury to her uterus and sigmoid colon and due to the said injury passing of stools by way of natural process turned to be impossible.  Therefore, an artificial anus by way of surgical creation was made on the abdominal wall by incising the colon and bringing it out to the surface.  All this complications were occurred consequent to the D & E done on 3.2.05 and 15.2.05.  According to the complainant, the D & E procedure is only a minor procedure and the above said complications were occurred due to the gross negligence of the 2^nd and 3^rd opposite parties.  It is also alleged that the 2^nd complainant was not properly attended by the doctors during her stay at the hospital.  Because of the above said complications of the complainant she had suffered a lot, physically, mentally and financially.  The complainant was also compelled to obtain further treatment that at Amritha Institute of Medical Sciences, Kochi for complete recovery. 

                   12. In order to prove the complainant’s case, the 2^nd complainant had filed a proof affidavit narrating her case in lieu of her chief examination.  ON the basis of the proof affidavit, the 2^nd complainant was examined as PW1.  One gynecologist of Muthoot Medical Centre, Pathanamthitta who had treated the complainant during 2004 is also examined as PW2 from the side of the complainant.  On the basis of the proof affidavit of the 2^nd complainant, the documents produced from the side of the complainant were marked as Exts.A1 to A7 and the treatment records produced by PW2 is marked as Ext.A8 through PW2.  Ext.A1 is the discharge summary dated 3.2.05 issued from the 1^st opposite party hospital in the name of PW1.  Ext.A2 is the discharge summary dated 9.3.05 issued from the 1^st opposite party hospital in the name of PW1 for her treatment from 14.2.05 to 9.3.05.  Ext.A3 is another discharge summary dated 27.4.05 issued from the 1^st opposite party hospital in the name of the complainant for her treatment from 25.4.05 to 27.4.05.  Ext.A4 series is a series of medical bills issued from the 1^st opposite party hospital in the name of PW1 in connection with her treatment.  Ext.A5 is the reference letter dated 21.3.05 (given to PW1) issued from the 1^st opposite party hospital addressed to Amritha Institute of Medical Sciences, Kochi.  Ext.A6 is the discharge summary dated 15.5.05 issued by Amritha Institute of Medical Sciences, Kochi in the name of PW1 in respect of her treatment at Amritha Hospital from 3.5.05 to 15.5.05.  Ext.A7 is a series of medical bills issued by Amritha Institute of Medical Sciences, Kochi in the name of PW2 in respect of her treatment at that hospital.  Ext.A8 is the outpatient treatment record from Mar Gregorious Muthoot Medical Centre, Pathanamthitta in respect of the treatments of PW1 from 8/03 onwards.

                   13. The contentions of the opposite parties 1 to 3 can be summarised as follows:-  They have admitted the treatment of the complainant at the 1^st opposite party hospital.   According to them, they have provided the best treatment available and they have not committed any negligence in the treatment.  What all complications seen in this case are medically accepted complications.  Such complications are usual in cases of patients having past history of missed abortions and having surgical scars in the uterus on account of previous LSCS and MTP.  The patient herein had previous history of missed abortion and having surgical scars in the uterus on account of previous missed abortion and having surgical scars in the uterus on account of previous LSMS and MTP.  Perforation of uterus is a known-complication of D & C and the risk of perforation is higher in the case of the complainant herein due to her previous gynecological treatments.  The patient herein was subjected for D & C on 3.2.05 by the opposite parties.  Later, on 11.2.05 she came in with complaint of abdominal pain.  After examination, she was advised to get admitted for evaluation for any retained product of conception.  But she disregarded the advise.  Thereafter, she came to the hospital on 14.2.05 and she was admitted and USG was done.  Based on the USG report she was admitted for D & E it was done on 15.2.05 and till 17.2.05 the general condition of the patient was good and she had no features of peritonics and the patient was found comfortable.  On 17.2.05 on the basis of the complaint of abdominal pain an X-ray abdomen was taken.  On the basis of the X-ray finding laprotomy was conducted with due care and caution.  The findings of laprotomy warranted the need of undertaking loopcolostomy.  All these procedures were done with due care and diligence and it was the standed method of management in the given circumstance.  The procedures performed on the complainant is universally accepted.  The complainant and the relatives’ were made fully aware of the need for the repeated procedures and they voluntarily agreed and they have given written informed consent for the procedures also. 

                   14. In order to prove the contentions of the opposite parties 1 to 3, opposite parties 2 and 3 had filed proof affidavits.  On the basis of the proof affidavit, opposite parties 2 and 3 were examined as DW1 and DW2.  One additional professor of Govt. Medical College, Kottayam was also examined as DW3 from the side of the opposite parties and Exts. B1 and B2 were also marked in evidence for opposite parties through DW3.  Ext.B1 and B2 are the treatment records in respect of the treatment of the complainant at the 1^st opposite party hospital from 3.2.05 on wards.  

                   15. For additional opposite parties 4 and 5, the 5^th opposite party filed a proof affidavit and one document.  On the basis of the proof affidavit the documents produced by the additional opposite parties is marked as Ext.B3.  Ext.B3 is the insurance policy certificate issued by the additional opposite parties 4 and 5 in the name of the 1^st opposite party for the period from 27.3.04 on 26.3.05.

                   16. On the basis of the contentions and arguments of the parties, we have gone through the entire materials on record and found that the parties have no dispute regarding the treatment of the 2^nd complainant at the 1^st opposite party hospital by the 2^nd and 3^rd opposite parties.  The only dispute between the parties is that the treatment provided by the opposite parties to the 2^nd complainant was negligent which caused serious complications to the complainant and thereby the complainant had sustained mental agony and financial loss.

                   17. The contention of the opposite parties is that, what all complications caused to the complainant is medically accepted and the treatments given to the complainant is proper and perfect and is as per medical ethics.  According to the opposite parties, the 2^nd complainant had previous history of missed abortions and cesarean session and as per medical texts, complications alleged by the complainant is usual in patients like the 2^nd complainant.  The oral testimony of PW2 and DW3, experts in the field of gynecology also supported the contention of the opposite parties.  The relevant portion of the deposition of PW2 in her chief examination is as follows:- “D & C -  colon apdnbp¶Xv doctorþsS A\mØ aqeatÃ? 100% AXv icnbmsW¶v ]dbm³ ]äpIbnà “.  In cross-examination she deposed as follows:- “perforation of the uterus is a non complication of D & C (QA).  D & C Hcp blind procedure BWv.  In case of previous cesarean session and previous D & C, the risk of perforation is higher. Injury to visera (abdominal organ) can occur in uterine perforation due to its close proximity ---------.  PW1þ\v Hcp abortionþDw Hcp missed abortionþDw D­mbn«p­v.  Cesarean \S¯pIbpw missed abortionþD­mIpIbpw sNbvXn«pÅ HcmÄ¡v (PW1þs\t¸mse) perforation of uterus D­mIpw.

                        18. The relevant portion of deposition of DW3 is as follows:- XpSscXpSsc abortionþDw D­mbm products retain sNbvXn«ps­¦n D & E sN¿pw. D & E sN¿pt¼mÄ complete products t]mImXncn¡p¶ AhØ, Hennarage (Bleeding) perforation (injury) infection F¶o complications C­mImw.  Missed Abortion caseþ products dried up Bbn wallsþ ]än¸nSn¨ncn¡pw.  A§s\ D­mbm curette F¶ D]IcWw D]tbmKn¨v ]än¸nSn¨ncn¡p¶ kwKXnIÄ Npc­n FSp¡mw. Blind procedure BbXpsIm­v complicationþ\v IqSpX km²yXbp­v.  Instrument-sâ tip ImWm³ Ignbm¯XpsIm­mWv  blind procedure F¶p ]dbp¶Xv.  Uterusþt\mSp tNÀ¶mWv large intestine.  B ImcWwsIm­v large intestine DÄs¸sSbpÅ organsþ\v injury D­mImw.  C§s\ D­mIp¶ complications accepted Bbn medical textþ ]dªn«p­v.  CXv Hcp negligence þ BsW¶v ]dbm³ IgnbnÃ.  Ct¸mÄ Fs¶ ImWn¨ ]pjv]Kncn Bip]{Xnbnse treatment records knan at\mPv (2^nd complainant) F¶bmfnsâ NnInÕ kw_Ôn¨pÅXmWv.  AXn I.P. records þDw O.P. records þDw D­v. I.P. records marked as Ext.B1 and O.P. records marked as Ext.B2.  Ext.B1 & B2 hniZambn verify sNbvXXn treatment procedures correct BWv.  Negligence þDw ImWp¶nÃ.  In cross-examination also he answered as follows:- “D & E and D & C kµÀ`§fn colon (large intenstine) cut BIp¶Xv medical negligence BsW¶p ]dbp¶p? Medical negligence BsW¶p ]dbm³ IgnbnÃ.  The above said depositions of PW2 and DW3 can be considered as opinions of experts.  The above said opinions are also not contradicted by the complainant by cogent evidence.

                   19. All the exhibits brought from both sides proves only the treatment of the complainant and the expenses therewith.  It does not disclose any negligence or deficiency of service from the opposite parties.  The said documents were also not used by the complainant to establish their case with the help of experts to enlighten this Forum that the complications of the complainant are due to the negligent treatment of the opposite parties.  Since the alleged complications are medically accepted especially in cases of patients like the 2^nd complainant and in the absence of any cogent evidence to prove that there is negligence from the part of opposite parties, we cannot find any deficiency of service against the opposite parties.  Therefore, this complaint is not allowable and is liable to be dismissed.

20. In the result, the complaint is dismissed.  No cost.

                        Declared in the Open Forum on this the 21^st day of January, 2011.   

                                                                                                                  (Sd/-)

                                                                                                Jacob Stephen,

                                                                                                   (President)

Smt. C. Lathika Bhai (Member)              :         (Sd/-)

Sri. N. Premkumar (Member)                 :         (Sd/-)

Witness examined on the side of the complainant:

PW1  :  Simi Manoj

PW2  :  Dr. Alice John

Exhibits marked on the side of the complainant:

A1     :  Discharge summary dated 3.2.05 issued by the 1^st opposite party  

             hospital in the name of the 2^nd complainant. 

A2     :  Discharge summary dated 9.3.05 issued by the 1^st opposite party 

             hospital in the name of the 2^nd complainant. 

A3     :  Discharge summary dated 27.4.05 issued by the 1^st opposite party 

             hospital in the name of the 2^nd  complainant.

A4 series    :  Medical bills issued by the 1^st opposite party hospital in the 

                        name of the 2^nd complainant. 

A5     :   Letter dated 21.3.05 issued by the 1^st opposite party hospital 

              addressed to Amritha Institute of Medical Sciences, Kochi. 

A6     :  Discharge summary dated 15.5.05 issued by Amritha Institute of 

             Medical Sciences, Kochi in the name of the 2^nd complainant. 

A7 series    :  Medical bills issued by Amritha Institute of Medical Sciences, 

                        Kochi in the name of 2^nd complainant. 

A8     :  Outpatient treatment record from Mar Gregorious Muthoot 

              Medical Centre, Pathanamthitta in the name of the 2^nd complainant.

Witness examined on the side of the opposite parties:

DW1 :  Laila George

DW2 :  Dr. Susan Mathew

DW3 :  Dr. C.P. Vijayan. 

Exhibits marked on the side of the opposite parties:

B1 & B2     :  Treatment records in the name of the 2^nd complainant.

B3     :  Insurance Policy Certificate.

                                                                                      (By Order)

                                                                             Senior Superintendent.

Copy to:- (1) Manoj. P. George, Parappattu House, Thonniamala.P.O.,

             Pathanamthitta.

(2)  Administrator, Pushpagiri Medical College Hospital,

              Thiruvalla – 689 101.

(3)  Dr. Laila, Gynecologist,   -do.  –do.

(4)  Dr. Susan, Gynecologist, Dept. of Gynecology & Obstetrics,

                 -do.  –do.

(5)  New India Assurance Co. Ltd.,  Salia Building, Near Head 

      Post Office, M.C. Road, Changanacherry.

(6) The Branch Manager, New India Assurance Co. Ltd.,

                       Changayil Buildings, College Road, Pathanamthitta.

                 (7)  The Stock File.