National Consumer Disputes Redressal
S Thamil Selvi vs Mrs. Dr Sooriya Kala on 7 March, 2007
Equivalent citations: AIR 2007 (NOC) 1749 (NCC) NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI, 2007 (4) ALJ (NOC) 690 (N.C.C.) (NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI), 2007 (6) ABR (NOC) 935 (NCC) NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI, 2007 (5) AKAR (NOC) 748 (NCC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION No. 169 of 1996 S Thamil Selvi Complainant (s) W/o Sri L.P. Sundaramurthy A.P. No. 618, 9th Sector 51 Street, K.K.Nagar West Madras 600 078. Versus Mrs. Dr Sooriya Kala Opposite Party (ies) Surya Hospital No.1/1, Arunachalam Road Saligramam Madras -600 093 M/s Surya Hospital No.1/1, Arunachalam Road Saligramam Madras -600 093 BEFORE: HONBLE JUSTICE SHRI K S GUPTA, PRESIDING MEMBER HONBLE DR.P.D.SHENOY, MEMBER. For the Complainant : Shri P M Bakthavatsalam, Advocate Shri Narayan Jha, Advocate For the Opposite Party: Shri K S Sundarrajan, Advocate Shri S Nanda Kumar, Advocate Dated the 7th March, 2007. ORDER
DR.P.D.SHENOY, MEMBER This is a case where the mother had gone to a hospital for a delivery (non-caesarian), had to remain in the hospital for three months and eighteen days and had to undergo untold suffering and had to be taken to the operation theatre six times and had to spend lot of money for treatment. A detailed analysis of the case proves medical negligence.
Case of the complainant :
According to the complainant Mrs. S Tamil Selvi wife of Shri L P Sundaramurthy was healthy and had her medical check-up periodically with one Dr. Sooriya Kala at the opposite parties hospital for her first confinement. She complied with the instructions of the doctor who assured that the baby was alright. At the beginning of the nine month the doctor directed the complainant to meet her after fifteen days so that she could administer glucose drips to make her get the labour pain to enable her to have a normal delivery. If the normal delivery was not possible the doctor said that she will perform a caesarian operation. The complainant developed labour pains on 19.08.1995 and was admitted in Surya Hospital where Dr. Sooriya Kala examined her and said that the baby was alright and confirmed that she would have a normal delivery. As the complainant got repeated labour pains the doctor prescribed an injection costing Rs.1500/- to facilitate easy delivery and Dr Udaya Kumar attached to the hospital gave this injection to the complainants spinal cord. Dr Sooirya Kala came to the complainant and pressed her stomach in many ways and compelled her to strain for delivery also threatened that she will perform Caesarian operation if the child was not delivered in the normal course.
Thereafter the complainant was taken to the labour room, immediately the childs head appeared down in the vagina and finally the complainant had a normal delivery. Dr Sooriya Kala took the complainant to the operation theatre in a hurry and inflicted several cuts in her body rapidly without giving any medicine to benumb the pain and later on sutured the cuts. On the tenth day of her stay in the hospital the complainant came to know that Dr Sooriya Kala while cutting her body had cut her rectum tube also. The complainant was suffering from unbearable pain, blood was oozing out from the sutured wounds and the discharge was increasing day by day and emanating foul smell. Not knowing how to tide over the situation and arrest the discharge of the blood, Dr Sooriya Kala administered glucose drips for sixteen days and made the complainant to starve without food.
On 21.08.1995 under the pretext of examining the cause of discharge of blood, the complainant was given anesthesia and sutures were removed and the rectum was stitched clandestinely, even then the discharge of blood and motion did not abate and the complainant was screaming with pain. Again on 25.08.1995 the complainant was taken to the operation theatre where the earlier sutures were removed and new sutures were made. This time the rectum was stitched twice, in spite of this the doctor could not arrest the stools and blood was oozing out from the wounds resulting in foul smell. The complainant could not bear the acute pain. The complainant and her family members suspected some foul play by the opposite party in taking the complainant to the operation theatre. In the meantime, the complainant lost blood and became very weak and was struggling for life.
When questioned, Dr Sooriya Kala- Opposite party stated that when the child was born baby tore the rectum and came out.
This is a blatant lie and is new to medical history. The opposite partys husband is also a doctor stated that as the childs head was facing up, the rectum tube was cut. Both the statements are contradictory to each other. As the discharge of blood and stools did not stop, the opposite party stated that she had to cut the stomach open and performed Colostomy and attached a bag for collection of faecal matter after twenty days and if the complainant had to survive, this is the only option. The above information was kept secret all along and the complainant was kept in the dark. Every time, the nurse used to clean the mixture of blood and stools holding cotton and scissors, the complainant used to scream with unbearable pain. At that time, three bottles of blood were transfused to her body.
Normally the mother should return to her home three days after the normal delivery but this has not happened. As the complainants relatives wanted an expert to examine her on account of her deteriorating state of health, Dr.Gnanaprakasam, Director of Sri Rama Chandra Hospital & College was summoned and he examined the complainant. He said unless colostomy was performed there was no hope of cure. As there was no other way, the complainant accepted the mode of treatment suggested by him and underwent the operation on 01.09.1995. On account of this surgery the complainant suffered excruciating pain whenever the nurse used to clean the oozing discharge of blood and stools holding cotton and scissors in her hand. During the surgery 1 litres of pus was taken out.
On 08.11.1995 the complainant was again taken to the operation theatre and anesthesia was given and the affected portion was cut, cleaned and sutured. On account of the repeated cutting, opening, cleaning and re-suturing the wounds, the complainant suffered unbearable pain and hence, she was given daily injection to make her sleep for six hours which did not have any effect on her. Stools used to come out 24 hours and the bag attached would get loosened and the stools used to spill all over the body. On 23.11.1995 at 06.00 AM sutures were made on her stomach and thereafter on 26.11.1995 the complainant was given only one spoon of water a day till 29.11.1995. The complainant had to suffer from hunger and thirst, untold misery and hardship. The complainant became very weak due to loss of blood and could not breast feed the new born baby. The very sight of her husband feeding a new born baby with the bottled milk throughout the night was a pitiable sight. The complainant stated that she was taken to operation theatre six times and Dr Sooriya Kala had subjected her to torture in a most inhuman and barbarous way for the sake of earning a fabulous amount. However, the complainant stated that on account of Dr Gnanaprakasam her life was saved.
The complainant further stated that she had become a T B Patient. It was noticed that the place where the rectum tube was sutured there was a small gap and for curing this Dr Gnanaprakasam opined that the complainant had to undergo another surgery with a stay of two weeks in the hospital, out of which one week without any diet. Complainant had become so weak that she required an assistance of four persons to attend her. She has to spend a lot of money to recoup her health and to bring up her child.
The complainant issued legal notice to the opposite party on 18.06.1996 claiming compensation to the tune of Rs.2.25 crores. As the opposite party did not respond to the notice the complainant sent a complaint to the Secretary, Tamil Nadu Medical Council, Honble Chief Minister of Tamil Nadu, the Director of Medical Education Madras and copy to the Indian Medical Council, New Delhi. The complainant had also given an undertaking that she was prepared to subject herself for medical examination by a team of doctors deputed by the Board to assess the present state of her health and the damage caused to her. The complainant stated that she was admitted in Suriya Hospital on 19.08.1995 and was discharged from the hospital on 06.12.1995 after a stay of three months and eighteen days for a case of delivery. Such a long stay for delivery is unthinkable and unimaginable. Accordingly, the complainant has claimed the following compensation :
1.
Hospital Charges Rs.2,00,000/-
2. Medicines Rs.3,00,000/-
3. Damages for the mental agony and suffering undergone, and expenses incurred and to be incurred for the recuperation of the health of the complainant and bringing up of the baby and other incidental expenses Rs.1,70,00,000/-
4. Loss of employment of the complainants husband and the mental agony and suffering undergone Rs.50,00,000/-
TOTAL Rs.2,25,00,000/-
Version of the opposite party :
The complainant came to her for consultation on 17.08.1995 in an advanced stage of pregnancy. There was no previous pre-natal check up by the opposite party before 17.08.1995 and she was informed that it was done by another doctor. Her scan report indicates her condition to be normal. As the complainant did not have any sign of labour pains, she was sent back home and was later on admitted in the hospital on the morning of 19.08.1995 for the delivery of the child as she had developed labour pains. Her condition was closely monitored by checking the fetal heart and the condition of the expectant mother by physical and electronic examination. As she could not tolerate the pain when the labour progressed, anesthesiologist Dr Uday Kumar administered epidural analgesia injection so that she could not feel the pain. This epidural analgesia injection is an accepted procedure adopted on the principle that once labour has been diagnosed and proper care instituted, pain has served its purpose, it then becomes appropriate to offer the woman pain relief. The patient was ready for delivery at about 03.30 04.00 P M as the cervix had dilated and she was encouraged by the opposite party and her assistants Dr Selvakumari and two nurses in the labour room to coax the patient in an earnest effort to help deliver VIA NATURALIS. Since it was comparatively difficult to push out the baby by maternal efforts alone the opposite party had to help the delivery with the low midcavity forceps which is generally used to assist in normal delivery.
Episiotomy is a normal planned incision performed in all normal vaginal deliveries more over in primis (first delivery). This procedure not only makes the birth easier but lessens the pounding of the head of the baby on the perineum and helps avert brain damage. This procedure was performed by the opposite party to enable the delivery. The same was sutured after the baby was delivered with placenta and membranes and the uterus had contracted. The cervix was found to be normal. Complainant was happy at her normal delivery at that time and the girl child was in good health. She breast fed the child later on. The complainant was later shifted to her room and was attended with good care by the nursing staff and the opposite party on her rounds. On 21st August, the opposite party found faecal contamination of the episiotomy wound and on suspicion that she could have developed a fistula and injury to the rectum and it was decided to shift her to the operation theatre to inspect the episiotomy wound. Dr Uday Kumar administered general anesthesia in the presence of Dr T R Gopalan, Additional Professor in Sri Ramachandra Medical Hospital, Madras and an experienced surgeon. The episiotomy wound was opened and cleaned and left open to facilitate healing.
Under the circumstances the patient was asked to refrain from taking solid food. On 22.08.1995 the complainants mother and her husband were informed about the sphincter loss and the need for temporary colostomy for diversion of faecal matters and that after repair of the perennial wound the colostomy would be closed. On 25.08.1995 wound toileting was done and on a second look of the fistula wound it was noticed that infection had not settled. It was about this time the relatives of the complainant became panicky and under the circumstances Dr Gopalan felt it was better to accept the demands of the relatives of the complainant and requested another surgeon namely Dr Gnanaprakasm, Dean of Sri Ramachandra Medical College Madras who was acceptable to them and was requested to attend to the patient. On examination of the fistula, Dr Gnanaprakasam suggested colostomy to enable the wound to heal faster and better. Dr Gnanaprakasam performed left iliac colostomy on 01.09.1995 with Dr Gopalan. The episiotomy wound healed well with the daily dressings by Dr Gopalan under instructions from Dr Gnanaprakasam who visited the patient on several occasions. On 23.11.1995 colostomy was closed and on 02.12.1995 sutures were removed and the patient was discharged on 06.12.1995.
The delivery of the child was normal and the injury to the rectum was not due to any negligence on her part. It is also not true that the complainant had become a T B patient on account of the acts of the opposite party. It is also not correct to state that her health is such that she would be a burden to her family on account of the acts of the opposite party. Every act to keep the patient clean after removing the dressing would normally result in pain. The statement that the opposite party had attached a bag due to loosening spilling motion is false and is made with an intend to discredit the opposite party and the hospital nursing staff. Without prejudice to the above, claim under the head Hospital charges of Rs. 02.00 and Rs.03.00 lakhs alleged to have been spent on the medicines is exaggerated and subject to proof. The claim under the third head of mental agony is a fantastic claim without any basis. The claim made on behalf of the husbands loss of employment cannot legally be maintained. There was a persistent lack of understanding on the part of the relatives of the complainant in understanding the situation and actions of the opposite party and her team of doctors who carried out their task sincerely and in good faith, to the best of their knowledge and ability and experience.
Submissions of the learned Counsel for the complainant:
The learned Counsel for the complainant submitted that only by going through the depositions of the opposite parties as well as the hospital records one can come to a conclusion easily that there was gross negligence of service on their part.
He invited our attention to the cross examination of Dr Sooriya Kala wherein she has stated that Dr C P Sreekumar her husband and his mother Late Mrs Rajalakshmi were the owners of Suriya Hospital. I do not know the functioning of the hospital and my services are only in Suriya Hospital. I know Tamil Selvi. Before coming to the Court, I have just gone through the hospital records relating to the case. The patient came to me on 17.08.1995. She came in the morning and met me in the Suriya Hospital. All the medical facilities were available in the hospital in the year 1995. Consent forms are obtained not only for surgery but also for other medical treatment procedures.
He drew our attention to the consent letters for operation/procedure, wherein name of the patient is given as Mrs Tamil Selvi and the date of admission is 19.08.1995 and the terminology used as EVA. There is a signature of the husband dated 08.11.1995 in the witness column and the rest of the columns are blank and there is no name of anaesthologist also. The doctors name who was performing the procedure or surgery has not been filled up in the consent form and the signature of the husband of the complainant is taken on the witness column which means that there is no separate witness who signed this form on 23.08.1995.
In the cross examination Dr Sooriya Kala has stated that the complainants delivery was normal with the use of forceps. Forceps delivery was decided at the moment of delivery. I have filed the version on verification from the records which was available on 19.08.1995. Although to attend on the patient a scan was taken in our hospital but it is not in our record. The scan shows the position of foetus, pelvis, cervix was normal according to the scan. The presentation of the foetus is cephalic at the time of delivery i.e. head coming out first. What I have stated in above para regarding the position of the foetus is 100% true. The position of foetus is Direct Occipito Posterior. At 01.15 P M the patient was referred to epidural analgesia. Consent was obtained either from the complainant or from their relatives for the first time on 21.08.1995 signed by the husband of the complainant. All the columns were not filled up. As the husband has signed the form, this can be stated as informed consent. On 19.08.1995 there was no risk factor and no occasion for taking consent. The BP of the patient was normal at 01.45 P M on 19.08.1995.
Further she has stated in her cross examination under the delivery notes that Episiotomy was resorted to. It is a procedure carried out just before the delivery of the baby to make the vagina spacious so that baby can be delivered comfortably. It involves the use of scissors. The stage at which episiotomy is restored it is called crowning. In the records between 19th and 29th August the word episiotomy is not recorded anywhere except in the delivery note.
What ever sutures were made upon the patient on 19.08.1995 it was made by me. Right medio lateral shows the direction of the incision upon the patient. On any human being rectal tube is not located in the right medio lateral direction. The gap between the vagina and anus is called perinial body or fourchette.
The distance between the vagina and anus is normally 3 to 5 cms. The discharge summary issued by Suriya Hospital to the complainant is marked as Exhibit A 2. In this the complainants husband has signed at the bottom and the writing is also of my husband and he has also signed.
On 20.08.1996 when I visited the patient after 08.00 P M, the patient was comfortable. The pain was normal or it is normal to have pain for a patient who had episiotomy. I was not keeping the patient on sedatives.
I agree that between 19th to 21st August I have been treating without consulting other doctors. Further, I find fecal contamination on the morning of 21.08.1995. The sutures were always left open. I found fecal contamination in the fourchette area. This is not noted correctly in the case sheet. Dr T R Gopalan is a professor of surgery in Ramachandra Medical College and works part time in the evening in Suriya Hospital. He was at the time an Assistant Professor. In 1995 Dr Gnananprakasam was the Dean of the Ramachandra Medical College and Hospital. I do not know Dr Gnanaprakasam was the senior most surgeon in Ramachandra Medical College and Hospital. Dr Gopalan had advised after exploration 10% Dextorose and two units of blood today and tomorrow one unit written on 21.08.1995. On 22.08.1995 Dr Gopalan had given his opinion in a separate sheet under heading Operation Notes. Dr Gopalan had suggested under Exhibit B 202 to have fecal diversion by colostomy.
The learned counsel for the complainant submitted that the complainant was kept in the hospital for 108 days for what was claimed by the gynaecologist who handled delivery to be a normal delivery with the use of forceps. She has also stated that a simple episiotomy procedure was used to facilitate the delivery. If that is so, why the mother and baby were kept in the hospital for such a long time? It gives a clear indication of the gross negligence on the part of the opposite parties : Dr. Sooriya Kala and Surya hospital. If forceps was handled carefully and episiotomy was performed with due care it would not have resulted in a tear of the anus and loss of sphincter muscle. This negligence resulted in continuous pain in rectum causing untold suffering to the patient and there was no alternative but to perform a colostomy operation.
Dr. Sooriya Kala has stated that there was no risk factor for the procedure performed on 19.8.95 and hence there was no occasion for taking consent. This is a clear cut admission that there was no informed consent for the use of forceps and also for the episiotomy procedure which was performed on 19.8.95.
Submissions of the learned Counsel for the opposite parties:
The learned counsel for the opposite parties submitted that the complainant Tamil Selvi was attended by Dr. Mangaleswari during her first nine months of pregnancy before she was brought to Dr. Sooriya Kala. Tamil Selvi in her deposition has admitted that Dr. Mangaleswari was treating her for 9 months and she advised her to go to Surya Hospital to meet Dr. Sooriya Kala.
She has stated in her cross examination that her mother was with her in the hospital along with her husband and nurses were attending on her daily. She has stated as follows :
My husband had signed the consent paper on 23.8.95 under Ex.B1. It Is not correct to state that Dr. Sooriya Kala was not present at the time of colostomy operation. After operation Doctors Dr. T.R. Gopalan and Dr. Gnanaprakasam have taken care on me till discharge. I was not informed or I do not have any infection of TB prior to 6.12.95.
In this regard between 19th & 29th August the word episiotomy is not recorded anywhere except in the delivery note. It is not correct to state that episiotomy was not resorted to this patient. It is not correct to say that the patient Tamil Selvi delivered normal baby with the help of forceps alone.
The learned Counsel submitted that to minimize the pain epidural injection was given prior to episiotomy. He quoted history sheet to state that on 19.8.95 at 1.30 p.m. epidural injection was given. At 4.30 p.m. on the same day patient delivered a live female baby and it was a forceps delivery by low mid cavity forceps application with a preliminary RML Episiotomy. Episiotomy wound closed in layers.
The learned Counsel further quoted following Oral Evidence of Dr. Sooriya Kala at 1 O clock doctors offered Epidural analgesia which is an accepted form of pain relief in labour as the patient could not give full efficiency to push the baby outside. If the patient is not able to tolerate the pain, by screaming and crying which could lead to maternal distress, which means heart rate goes up and non-cooperation of the mother. At 1.15 p.m. patient was willing for epidural analgesia..We prevented maternal distress by giving epidural analgesia.
Episiotomy is an incision made on the Vagina of the patient to make space at the outlet bigger for the baby to come out comfortably and to avoid intolerable tears. It is also advantageous to the child as a well timed episiotomy not only makes the birth easier but lessens the pounding of the head of the baby on the perineum and helps avert brain damage. The episiotomy was done at the proper time by the opposite party.
Episiotomy is a normal planned incision performed in all normal vaginal deliveries more so in primis.
It is a procedure to make vagina spacious so that the baby can be delivered comfortably.
The right mediolateral shows the direction of the incision upon the patient. On any human being rectal tube is not located on the right mediolateral direction. On the day of delivery the incision was made by me with scissors started by the vagina but not towards the anus. The incision ends near the right mediolateral part of the anus. In medical terms it is right mediolateral episiotomy.
Ld Counsel for the opposite parties quoted the text book on Episiotomy by Prof. C.S. Dawn wherein mediolateral episiotomy is defined as - This is a backward and outward incision on the perineum from the midpoint of the fourchette upto the side of the anus. This is the popularly practiced method. The main advantage is that even if tear gets extended it does not lead to complete perineal tear. Moreover, adequate room is available by this method. Its disadvantage is that during suturing opposition of tissue becomes little difficult.
He also quoted 17th edition of Williams Obstetrics - Episiotomy and repair Episiotomy in a strict sense, is incision of the pudenda. Perineotomy is incision of the perineum. In common parlance, however, episiotomy is often used synonymously with perineotomy, a practice that will be followed here. The incision may be made in the midline (median or midline episiotomy), or it may begin in the midline but be directed laterally and downward away from the rectum (mediolateral episiotomy).
Purposes of Episiotomy - Except for cutting the umbilical cord, episiotomy is the most common operation in obstetrics. The reasons for its popularity among obstetricians are clear. It substitutes a straight, neat surgical incision for the ragged laceration that otherwise frequently results. It is easier to repair and heals better than a tear.
With mediolateral episiotomy, the likelihood of lacerations into the rectum is reduced.
He further quoted Integrated Obstetrics and Gynaecology for Postgraduates edited by Sir John Dewhurst as follows :
An episiotomy is a second-degree laceration of the vulva, vagina and perineal body, man-made with scissors, after local infiltration of the tissues with an anaesthetic agent. Older textbooks to go great lengths to enumerate the indications for episiotomy, e.g. occipito-posterior position, breech delivery, forceps delivery, narrow subpubic arch, previous vaginal repairs, shoulder dystocia, or to control the direction of vaginal lacerations, etc. The modern accoucheur simply looks for reasons why an episiotomy should not be performed. There are few. A controlled incision thorough non-traumatized tissue is always more desirable than a jagged lacertion in devitalized tissue.
A childs need at the time of delivery is for some increase in the antero-posterior diameter of the pelvic outlet. To achieve this a medio-lateral episiotomy must compensate for the altered angle of the incision and be more generous than a midline episiotomy. Episiotomies directed laterally are both valueless and contra-indicated.
He also quoted Mudaliar and Menons clinical obstetrics Episiotomy may be either lateral, mediolateral or central. Of these, the mediolateral episiotomy is preferable. Lateral episiotomy is not recommended. The timing of the mediolateral episiotomy is important. Mediolateral episiotomy has no such disadvantages. However, healing is more perfect in a central episiotomy.
Lastly he quoted Royal College of Obstetricians and Gynaecologists Methods and Materials used in perineal repair Pereneal trauma may occur spontaneously during vaginal birth or by a surgical incision (episiotomy) made intentionally to increase the diameter of the vulval outlet to facilitate deliver. It is possible to have an episiotomy and a spontaneous tear (for example an episiotomy may extend into a third-degree tear).
Learned Counsel submitted that these steps are accepted procedures to avoid pounding of the perineum by the head of the baby which may cause damage to the brain. Use of forceps and episiotomy are not surgeries hence, it is not necessary to take consent of the patient or the guardian.
After delivery, post delivery care was taken with the help of other doctors and episiotomy was examined under general anesthesia.
Patient is posted for exploration under G.A. at 4 p.m. today. NPO from 11 A.M. Clean the perineum and keep a clean pad.
Inj. Augmentin 1 vial stat about 1 p.m. Stop oral tabs.
To inform OT & Dr. U.K. & Dr. P.M. Gopinath Consent S/w enema at 1 p.m. Followed by Metrogyl anema Betadine Vaginal tab 1 2.30 p.m. Learned Counsel further quoted operation notes of Dr. T.R. Gopalan, wherein it is mentioned explained to the mother and husband about the sphincter loss, the need for a colostomy (temporary loop) as fecal diversion and there after repair with the colostomy closure.
Dr. Sooriya Kala has stated in her cross examination I handed over the patient to Dr. T.R. Gopalan on 25.8.95. It will not amount to negligence in transferring a patient to another doctor without getting directions from the Medical Superintendent of the hospital.
The learned counsel for the opposite parties quoted an extract from the patients evidence to support his contention that Dr. T.R. Gopalan and Dr.Gnanaprakasam were looking after her regularly and nurses were attending on her on a daily basis and also that her husband has signed a consent form on 23.8.1995.
The learned counsel quoted the discharge summary : The patient suffered from amenorrhoea with abdomen pain. Patient went in labour and was being monitored. A live female baby was delivered at 4.30 p.m. assisted by Low Medcavity forceps and Right Medio Lateral Episiotomy.
On 22.08.95 fecal contamination of the episiotomy wound was noticed. Under GA the wound was examined. All the episiotomy sutures were removed and wound cleaned well.
On 25.8.95 a second look under anesthesia was done. She had Pus in the episiotomy site with fecal soiling from a low recto vaginal fistula.
At the request of the patients relatives Prof. Gnana Prakasam was called upon to see the patient.
In view of the severe pelvic and pudendal infection which did not respond to the higher antibiotics and since the patient had constant irritation at the episiotomy site we were compelled to do a defunctioning colostomy as a method of total fecal diversion.
On 1.9.95 a Left Iliac (sigmoid) colostomy was done under GA. Colostomy worked from 4.9.95 and the episiotomy wound also started healing On 23.9.95 an examination under anesthesia of the perineal wound done and found satisfactory.
On 8.11.95 a detailed examination of Rectum and vagina done and layered closure performed of the Low recto vaginal fistula.
On 23.11.95 colostomy closure done under GA. Sutures were removed on 2.12.95 and advised to be discharged.
Discharge Advice :
1.
Follow up with Prof. Gnana Prakasam MS FICS after 10 days.
2. Tab. Lomefloxacin 400 mg daily x 10 days
3. Cap. Zevit 1-0-0 daily x 10 days
4. Neosporin powder for colostomy wound area
5. Sitz bath for the episiotomy wound area.
The discharge summary quoted supra by the learned counsel for the opposite parties was to support his contention that every care was taken by the doctors and hospital to ensure proper treatment to the patient to cure her of the problems and also to bring her back to normal health.
On 15th Feb., 1996 Dr. Gnana Prakasam has addressed a letter to Dr. CND wherein he has stated as follows :
On examination vagina is completely healed. A perinial fistula persists as Fistula in Ano. Probablyis is not hearing because of Tuberculosis infection. Now we can continue ATT, with that the fistula may close by itself. If it is not closing within 90 ATT we can do fistulectomy which is a simple operation.
Findings (1) It is useful to look into the format of the consent form which is reproduced below:
Sooriya Hospital Consent for Operation/Procedure Patient Name : Age : Sex :
Code No. : Ward : R.No. :
Consultant : DOA It is the Policy of Sooriya Hospital to inform the patient of the proposed treatment and you are encouraged to ask your doctors any questions you may have regarding your care.
1. I hereby authorize Dr. or associates at Sooriya Hospital to perform upon me or the above-named patient the following operations and / or procedures (Please type or print, name of planned procedure
(s)...
meaning (please explain briefly in lay terminology)..
..
2. Dr. has fully explained to me the nature and purpose of the operation/ procedure and has also informed me of expected benefits and complications, attendant discomforts and risks that may arise, as well as possible alternatives to the proposed treatment.
I have been given an opportunity to ask questions, and all my questions have been answered fully satisfactory.
3. I understand that during the course of the operation or procedure unforeseen conditions may arise which require procedures different from those planned.
I therefore, consent to the performance of additional procedures which above-named physician or his/ her associates may consider necessary.
4. I further consent to the administration of such anaesthetics as may be considered necessary. I recognize that there are occasional risks to life and health associated with anaesthesia and such risks have been fully explained to me.
5. For the purpose of advising medical knowledge and education, I consent to the photographing, video taping or televising of the operation or procedure to the performed, provided my / the patients identity is not disclosed.
6. I confirm that I have read fully and understood the above.
Witness:
Patient/Relative ..
(Signature) or Guardian (Signature) .. ..
(Print Name) (Print Name) Date : ..
.
(Relationship, if signed by person other than patient) I hereby certify that I have explained the nature of procedure, have offered to answer any questions and have fully answered all such questions.
.. Physician .
(Signature) Now let us look into the various consent forms for the operations :-
There is one consent form authorizing Dr. Sooriya Kala to perform suturing where husband of the complainant has signed, under column meant for witness. There is no date, name is not written and the date of surgery or procedure is also not mentioned.
There is another consent form for operation/ procedure signed on 21.8.95. Again the signature of the husband of the patient has been obtained under the column for witness not under the column for relative or guardian.
Name of the doctor who supposed to perform operation was left blank. Nature and the purpose of the operation is left blank and signature of the physician who has to certify the procedure has to be done is left blank and the last column explaining the nature of procedure and answers to any questions is left blank.
In consent form signed by Mr. Sundaramoorthy on 23.8.95 name of the doctor who is authorized is left blank, name of the doctor who has explained nature and purpose of the operation is left blank.
The operation and procedure mentioned as EUA at 4 p.m. Last column explaining the nature of procedure and answer to any questions is left blank.
Then the consent form signed on 1.9.95 name of the doctor is written as Dr. Gopalan, procedure is left blank, the name of the doctor who was to explain the procedure is left blank. Name of the doctor who has to certify that he has clarified all queries is left blank.
In the consent form signed on 8.11.95 name of the doctor to perform the operation/ procedure is left blank, the procedure had mentioned as EVA, name of the doctor, nature of purpose of operation and complications etc. is left blank. Consent of the husband was taken under the column of witness not under the column patient/ Relative or Guardian. The column for the doctor who has to explain the procedure and answer queries is left blank.
In the consent form signed on 23.11.95 by Mr. Sundaramoorthy name of the doctor is filled up as T.R. Gopalan, in meaning of terminology column it was mentioned as colostomy close and shows that Dr. T.R. Gopalan has fully explained the procedure but there is no signature of Dr. T.R. Gopalan at the bottom of the consent form stating that he has answered the queries.
The husband of the patient had signed the first consent form on 21.8.95 though the forceps delivery with episiotomy procedure was conducted on 19.8.95. A look at various consent forms shows how carelessly they have been filled up by the hospital authorities. For example some consent forms do not mention who are the surgeons or the doctors who performed procedures and operations and which doctor has explained to the patient or the guardian and the purpose of operation or procedure.
Signature of the patient or relative taken in the witness column but there are no witnesses to the consent form. Only in one or two cases the procedure performed was mentioned in abbreviation or doctors name had been filled up.
The consent forms indicate that the first signature was obtained on the form on 21.8.95 though it cannot by any stretch of imagination be construed as an informed consent whereas, the episiotomy procedure was performed on 19.8.95 itself.
Consent : In this context it is useful to look into the definition of consent
- The term consent is defined thus : When two or more persons agree upon the same thing in the same sense they are said to consent as per the definition of consent given in section 13 of Indian Contract Act, 1872.
Express written consent is to be obtained for : (i) all major diagnostic procedures; (ii) general anaesthesia; (iii) surgical operations: (iv) intimate examinations; (v) examination for determining age, potency and virginity; and (vi) in medico-legal cases.
Informed consent : The concept of informed consent has come to the fore in recent years and many actions have been brought by patients who alleged that they did not understand the nature of the medical procedure to which they gave consent. All information must be explained in comprehensible non-medical terms preferably in local language about the : (i) diagnosis; (ii) nature of treatment; (iii) risks involved; (iv) prospects of success; (v) prognosis if the procedure in not performed; and (vi) alternative methods of treatment. The three important components of such consent are information, voluntariness and capacity. (Dr. Jagdish Singh and Vishwa Bhushan (1999), Medical Negligence and Compensation Bharat Law Publications, Jaipur).
The Surya Hospital has proudly proclaimed in their format of the printed consent form as follows :
It is the Policy of Sooriya Hospital to inform the patient of the proposed treatment and you are encouraged to ask your doctors any questions you may have regarding your care.
When they have not filled up the name of the doctor in several of the consent forms, how can they expect the patient to ask questions to the unknown doctor?
The consent forms signed by the husband of the complainant reveals that
(a) Procedure/surgery to be performed has not been mentioned in clearly understandable terms;
(b) The procedure/surgery has not been explained to the patient or guardian in simple understandable terms in the local language;
(c) Many columns are blank;
(d) The signature of the husband of the patient has been taken in the column meant for witness which can mean either there was no consent from the patient or guardian or to be liberal to the opposite parties it can mean there were no witnesses;
(e) There was no consent for blood transfusion;
(f) There was no consent for anaesthesia.
The partly filled up consent forms narrated above proved beyond doubt that none of them can be classified as informed consent. This is a clear cut deficiency of service on the part of the respondents.
(2) Undisputedly the complainant Tamil Selvi was admitted on 19.8.95 to the Surya hospital and advised normal delivery under the care of Dr. Sooriya Kala, Gynaecologist and she was not suffering from diseases like diabetes, bronchical asthama or durg allergy. According to the hospital records the delivery was forceps delivery with right medio lateral episiotomy. The description reads as follows :
Patient delivered a live female baby at 4.30 p.m. by low mid cavity forceps application with a preliminary RML Episiotomy. Cord clamped and cut. Baby cried soon after birth after resuscitation. Placenta with entire membranes delivered in toto. Inj. Methergin 2 amp IV given. Episiotomy wound closed in layers. No undue bleeding PV.
If that is so why the mother and the child were retained in the hospital for nearly 3 months in the hospital raises many questions. The patient was admitted on 18.8.95 and was discharged on 2.12.95. During the period of stay the patient had to be taken to the operation theatre several times.
To substantiate that the patient continued to suffer even as late as on 27.11.05 the observations made by Dr. M. Shihab are relevant.
Patient today passed motion through anus and vaginal orifice. Patient general condition is good, CVS, RS-NAD,P/A-Soft.
(3) Extracts of the typed set of selected records submitted by the learned counsel for the opposite parties indicates as follows :
On 20.8.95 Excess bleeding P/V associated
with clots
On 21.8.95 - Patient
is posted for exploration under G.A. at 4 p.m. NPO from 11 a.m. Clean the perineum and keep a clean pad Inj. Augmentin 1 vial stat about 1 p.m. Stop oral tabs To inform OT & Dr. U.K. & Dr. P.M. Gopinath Consent S/W enema at 1 p.m. Followed by Metrogyl enema Betadine Vaginal tab 1 -2 .30 p.m. On 23.8.95 1 pint of blood given yesterday. Patient is complaining of difficulty in breathing 25.8.95 - Re-suturing under G.A. at 4.30 p.m. today 26.8.95 - IV Fluids as advised by Dr. S. Sooriya Kala 27.8.95 - Blood transfusion 1 unit given 30.8.95 - Episiotomy wound is wide open and smeared with fecal material.
P/V Vagina has compared drain lying in vaginal cavity, hole in posterior vaginal wall leading to a abscess cavity (?). after removing finger thick pus is draining in the vagina and draining out.
P/R -
anal very appears normal.
Immediately after entering into anal canal, loss of right lateral wall of anal canal and finger easily going out and into episiotomy wound through which liquid fecal material is pouring out in view of the incontinence of fecal material and pressure of abscess in pure vaginal region the only solution to get rid of infection and inflammation of internal and perinneal region is a definct left inguinal loop colostomy. Once area is clean and drained. We can think of repairing of defect and episiotomy wound.
1.9.95 - To follow the same pre-operative instructions.
Antibiotics to be continued.
5.9.95 - Pus discharge + from episiotomy necrosed 9.9.95 - Pus still coming cleaned with saline 10.9.95 - Able to walk with the help of walker 23.9.95 - Shifted to OT after both dressing 26.9.95 - Complaint of pain over sutured site 28.9.95 - Complaint of pricking pain over the episiotomy site, mild pus discharge associated with blood 01.10.05 - Bloody discharge from yesterday has ↓ 10.10.95 - Small swelling over left side of the pubic region 17.10.95 - Shift to labour room tomorrow 6 p.m. after dressing 23.11.95 - for colostomy closure today at 4 p.m. 24.11.95 - complaint of pain in the abdomen 27.11.95 - Dr. M. Shihab - Patient today passed motion through anus and vaginal orifice.
The above observations are only a small part of the hospital records which runs to more than 30 pages full of details of medication, dressing and injections indicating that patient was administered several powerful medicines. Naturally she could not have breast fed the baby during the crucial first 3 months after delivery so as to enable the baby to develop immunity to several diseases.
The hospital records quoted supra cannot support the contention of the opposite parties that there was no negligence on their part. It also does not give any justification for non-healing of the episiotomy wound for so long which was considered to be a simple procedure. It does not give any reason for the tear of the anus and rupture of the sphincter. Hospital records are full of statements about the pus in the episiotomy wound, non-healing of the episiotomy wound within a reasonable period of time, faecal matter coming out through the anus and vaginal orifice even as late as on 27.11.95 despite performing the colostomy operation. The patient was inflicted with several procedures one after another and taken to the operation theatre repeatedly. Not only that she was administered high doses of medicines/antibiotics and also IV fluids to recover from the complications created by the episiotomy operation procedure.
(4)Episiotomy : The learned counsel for the parties has taken pains to explain the episiotomy procedure by quoting several medical texts. This does not prove that Dr. Sooriya Kala has performed episiotomy with due care and as per the prescribed procedure. If the episiotomy procedure was performed with due care it would have healed within a few days which is not the case here. Further, though the learned counsel for the opposite parties argued that episiotomy was performed through medio-lateral procedure he could not explain why it has resulted in the rupture of the anus causing the mixture of the stools and the blood oozing from the episiotomy wound resulting in unbearable suffering to the patient for several days. There is no explanation in the record why the gynaecologist had to damage the rectum while performing episiotomy.
The patient had no choice but to undergo a colostomy operation in the hospital at the hands of another surgeon. Though it is stated in evidence that nurses have come and seen her on day to day basis, the pain, agony and suffering of the patient could not be prevented by the opposite parties. The patient had to undergo one procedure after another, could not breast feed her baby, could not take solid food for several days resulting weakness, had to take IV fluids off and on, had to writhe in agony, had to spend sleepless nights in the hospital, had to suffer excruciating pain when the sutured vagina and ruptured anus were cleaned, had to cover herself with foul smell due to uncontrolled faecal discharge etc. All these speak volumes about the sufferings undergone by the patient due to clear cut acts of medical negligence by the opposite parties.
(5) In Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and another (AIR 1969 SC 128) Honble Apex Court held that the duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment.
A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.
Neither they very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires : (cf. Halsburys Laws of England, 3rd edn, vol. 26, p. 17).
The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.
In the subject case it is clear that medical practitioner has not brought to her task a reasonable degree of skill and knowledge and has not exercised a reasonable degree of care.
In Jacob Mathew vs State of Punjab and Another (2005) 6 SCC 1, the Honble Apex Court has observed as follows :
The classical statement of law in Bolam case, (1957) 2 AII ER 118 at p.121 D F (set out in para 19 herein), has been widely accepted as decisive of the standard of care require both of professional men generally and medical practitioners in particular and holds good in its applicability in India.
It is clear from the hospital records and the statement of Dr. Sooriya Kala in cross examination that the opposite parties have not passed the Bolam Test.
In this case the patient had to spend 108 days in the hospital for a normal delivery with forceps and episiotomy, had to be taken to the operation theatre time and again and had to undergo untold suffering as explained supra which leads us to one veritable conclusion that this is a case of res ipsa loquitur ( the thing speaks for itself).
In the head notes of the oft cited case decided by the Supreme Court of India in Achutrao Haribhau Khodwa & Ors. Vs. State of Maharashtra & Ors. (AIR 1996 SC 2377) it is stated that -
In this case Tort Medical negligence Mop (towel) left in peritonial cavity of patient while performing sterilization operation leading to complications and death-But for the fact that mop was left inside the body causing peritonitis, death would not have occurred-Doctor held negligent in discharge of duty-Res ipsa loquitur doctrine applied.
This case is comparable to the case on hand.
In view of the above analysis we have no hesitation to conclude that there has been a gross negligence on the part of opposite parties.
(6) The complainants have produced a final bill of the Surya Hospital before us which is a tune of Rs. 1,86,849.91/-
dated 6.12.95. This has to be granted to her. Subsequently, she must have spent money on medicines, the details of which are not before us but it can easily be computed that she would have spent about a lakh of rupees. She has claimed damages to the tune of 1 crore and 70 lakhs for mental agony etc. Towards this we hereby award Rs. 10 lakhs. Complainant has claimed Rs. 50 lakhs towards loss of employment of the husband. As we do not have sufficient evidence for this we are unable to award any compensation. Totally we award Rs.12,86,850/- lakhs and cost of Rs.25,000/- against the opposite parties. In case this amount is not paid within 4 weeks of the receipt of this copy of this order by the opposite party the complainant will be entitled to interest on the said amount @ 9% p.a till the date of payment.
.J [ K S Gupta ] Presiding Member .
[ P D Shenoy ] Member Srk & Rajani