National Consumer Disputes Redressal
Ravindra Padmanabhan (Dr.) Through ... vs Lakshmi Rajan And Anr. on 14 February, 2007
Equivalent citations: 2(2007)CPJ17(NC)
ORDER
B.K. Taimni, Member
1. Appellant was the second opposite party before the State Commission, where the first respondent Mrs. Laxmi Rajan was the complainant.
2. Very briefly the facts leading to filing the complaint were that the complainant noticed development of a painful lump in her breast for which she consulted a Physician Dr. P.K. Srinivasan, from wherein she was referred to the second respondent Malar Hospital. She was examined by a physician of the hospital on 25.7.1992. The painful lump was diagnosed to be "Fibro Adenoma" of the left breast and the complainant was advised mammogram and excisionbiopsy. The mammogram was done on 31.7.1992 which showed two well defined nodules in the left breast with features of Fibro Adenoma. The complainant was again admitted in the Malar Hospital on 3.8.1992. On 4.8.1992 an ultrasound study of the ultra abdomen was done. While it revealed other things to be normal but it revealed the uterus of the complainant to be anteverted and ovaries normal and there was no indication of a Pro-lapsed or descended uterus. The complainant was operated upon by the appellant (since deceased) on 5.8.1992. It was her complaint that when she regained conciousness she was shocked to be told by the appellant that her uterus has also been removed. While in the complaint several other allegations were made with regard to surgery and postoperative treatment / care but these complaints were withdrawn during the course of argument and the same is also noted by the State Commission in its order. Action of medical negligence which survives for the consideration was whether the total hysterectomy/removal of uterus was called for and was in order as per medical ethics or no? It is in these circumstances alleging medical negligence a complaint was filed before the State Commission.
3. The State Commission, by a majority judgment, while not holding the hospital guilty of any medical negligence, appellant alone was found negligent for which the State Commission allowed the complaint and awarded a compensation of Rs. 2,00,000 along with cost of Rs. 2,000. It is note-worthy that a professional lady Member being qualified doctor passed a separate order dismissing the complaint along with cost of Rs. 1,000. Aggrieved by this order this appeal has been filed before us.
4. During the pendency of appeal the appellant died and matter is now being contested by the LRs who have been duly brought on record.
5. We heard the learned Counsel for the parties. Parties agreed that the action of medical negligence is narrowed down to one point. The case of the appellant is that he had acted as per professional ethics and followed the advice / suggestion of the referring doctor, i.e., Dr. Srinivasan and carried out surgery after obtaining written consent of the complainant for both, i.e., removal of tumour in the breast as also for removal of uterus, in such circumstances, he cannot be faulted of any negligence. There is no expert opinion that hysterectomy should not have been done. On the other hand it is the case of the respondent/complainant that firstly, the Report of Dr. P.K. Srinivasan has been obtained after the surgery was done; secondly, relying upon the report of one Dr. Sridhar, examined as PW-1, it is his case that in the condition in which the patient was, there was no need for any hysterectomy as according to Dr. Sridhar:
The patient never complained of prolapsed uterus when she consulted Dr. Ravindra Padmanabhan on July 25, 1992. There is no record in the examination report written by Dr. Ravindra Padmanabhan (dated July 25, 1992) or any complaint of uterine prolapsed. There is also no record of an observation or diagnosis of uterine prolapsed in Dr. Ravindra Padmanabhan's examination report dated July 25, 1992 which was written when he examined the patient when she consulted him at Malar Hospital. Surgery in the case of uterine prolapsed is indicated only in the case of third degree prolapsed when the patient's walking or physical activity is affected. But the patient never complained or uterine prolapsed or pain during physical activity before surgery. In the absence of any record indicating a complaint, observation or diagnosis of uterine prolapsed before surgery, removing the uterus and the ovary of Mrs. Lakshmi Rajan based on the false assumption of 'Prolapsed uterus' was unnecessary and unwarranted. (Reference booklet Nos. 1, 2 and 3) The only record that indicates a diagnosis of "Prolapsed Uterus - 2nd degree" is the "discharge summary" - a note given to the patient at the time of her discharge from hospital. But this does not serve as proof or record for the presence of a complaint, observation or diagnosis of prolapsed uterus before the surgery was conducted. Even if we were to believe the diagnosis of "2nd degree - prolapsed uterus" mentioned in the discharge summary, it again proves that hysterectomy and right oopherectomy done on Mrs. Lakshmi Rajan was unwarranted because such radical surgery is reserved only for third degree prolapsed uterus and not for second degree prolapsed uterus.
6. It was also the case of the respondent/ complainant that no independent examination including clinical examination was carried out by the appellant to satisfy himself that there exists a need for carrying out hysterectomy on the complainant.
7. After hearing the parties and perusal of material on record we find that there is a reference letter of Dr. Srinivasan which reads as follows:
I am referring my family friend Mr. Rajan whose wife Mrs. Lakshmi has been complaining of "lump in the left breast which has progressively enlarged, and gives pain". She is also having severe painful profuse bleeding p. v. for which she says, she has consulted her Gynaecologist and has been advised Hysterectomy immediately.
In view of the difficult financial condition of the family at present, kindly consider combining the two procedures in one sitting to reduce her expenses.
(Emphasis supplied)
8. There is also no dispute that the consent for carrying out an excision of lump in breast and abdominal Hysterectomy was obtained from the patient.
9. It has been challenged from the very beginning that this letter of Dr. Srinivasan is an after-thought but this allegation falls flat if we see the cross-examination of Dr. Srinivasan carried out by the respondent/complainant in which the witness Dr. Srinivasan clearly states two things, firstly that this letter was issued by him and he admitted having advised the appellant to combine both the operations in one sitting to minimise the cost as the complainant was not financially sound. In our view this closes the chapter on the veracity and the authenticity of this letter issued by Dr. Srinivasan. This reference letter of Dr. Srinivasan, who ostensibly is a family doctor of the respondent/complainant was taken as a determining factor about the gynaecological problem relating to uterus. Dr. Srinivasan has stated in his cross-examination that once, when he had gone to their house and had noticed foul smell and profuse bleeding, which appeared to be per-vagina for which she is said to have consulted a gynaecologist and this finds mention in the reference letter given to the complainant for the appellant. It is not the case of the complainant that they were not literate or any wrong reference was being made. There is no rebuttal on record that the reference to the complainant already having consulted a gynaecologist and advising Hysterectomy was not true. This has an important bearing and finds mention in the cross-examination of the appellant in which he clearly states since there was a reference that the complainant has suggested Hysterectomy and this reference letter given from the family doctor of the complainant, in such a case there was no need for a separate or independent examination by the appellant.
10. We have also seen the report, the affidavit and the cross-examination of Dr. Sridhar. It is not in dispute that he is a General Physician and the only special qualification brought before us, relates to his having obtained a diploma in Psychology whereas, in our view, under no circumstances his views could be given the credit-worthiness of being an expert opinion. There is no dispute that the appellant was a qualified surgeon of standing and Dr. R.K. Srinivasan was a doctor having the qualification of MD, FCCP, F.I.C.A. (USA), M.R.S.H. (London). While the appellant himself could be an interested party, but that Dr. P.K. Srinivasanbothby qualification as well as being a family physician of the complainant would have to be given a greater weightage as far as medical opinion is concerned. In our view, he should be sought treated as an independent witness. In his cross-examination nowhere it stated that the line of a treatment surgery done by the appellant was in any way not as per medical advice or not warranted. Dr. Sridhar in his report as also in his cross-examination states that removal of uterus is only under three conditions, namely:
(1) Terminal condition of multiple myomas in the uterus (fibroids);
(2) Cancer's growth in the uterus;
(3) Third degree or complete procidentia of the uterus.
11. But no material was produced in respect of any such conditions. In the cross-examination of the appellant he clearly stated the context in which he carried out the Hysterectomy and they were as follows:
(1) The patient's complaints were clear and explicit;
(2) The patient had already seen a Gynaecologist and was advised a Hysterectomy;
(3) This was corroborated by the letter from the family Physician Dr. P.K. Srinivasan.
12. This remains unrebutted. On the contrary they are supported by the reference letter of Dr. Srinivasan as also by his affidavit and cross-examination.
13. Lot of emphasis were laid on the report of the sonogram done on the patient which according to the complainant does not support removal of uterus/Hysterectomy. This poses before us a question of a diagnostic tool vs. clinical reports. On the one hand, there was the referral letter, which quotes the factum that complainant has been advised by her Gynaecologist to go for Hysterectomy immediately and on the other hand was the report of the Sonography. In this matter if the surgeon has carried out a surgery based on the reports of his family doctor, i.e., Dr. Srinivasan, that she has been advised by her gynaecologist to go for Hysterectomy in our view in such a situation no negligence can be fastened on the appellant.
14. Two other points emerge for our consideration--first point relates to need for a surgery in case of 2nd degree prolapse uterus and secondly, surgical procedure for hysterectomy, i.e., surgery per vagina or removing uterus via the abdomen.
15. Dealing with the first point first, report of the sonogram done on the complainant, reads as follows:
The uterus is anteverted measures 10.4 cms x 5.4 cms and appears bulky. The endometrium is slightly thickened (premens faul phase). The myometrium is normal. The cervix and vagina are normal.
16. It is admitted position that normal size of the uterus is 7cm length and 3cm in breadth. Even though anteverted uterus is a normal position, but what also needs to be borne in mind is the factum of variation in the size of the uterus as also the uterus being 'bulky'. It is the case of the complainant that even if, in these circumstances the uterus was to be taken having 2nd degree prolapse, surgery /removal of uterus was not in order. Before the State Commission, the complainant relied upon the Medical Literature, i.e., 'Jeffcoate's Principles of Gynaecology' under the head 'Hysterectomy'. Appellant agrees with the approach expounded by the Author but he also states in his cross-examination that this is only a 'suggestion'. Decision as to what to do in a given situation is to be decided by the doctor concerned - which remains unrebutted. Complainant has nowhere led any expert evidence that what was done by the appellant was specifically 'not done' thing by a doctor in the given situation. In the absence of such evidence, in our view the complainant fails to prove a case of negligence on the count.
17. Associated plea advanced by the complainant is that hysterectomy should have been done per vagina and not per abdomen. In his cross-examination he stated as under:
Hysterectomy (vaginal o) is usually done in elderly women where the musculation is weak and where there is polapse. When the patient came to me, her complaints did not suggest a cystocile...her gynaecologist had not diagnosed a cystocoele....Cystocelecom occur at any time after hysterectomy....
(Emphasis supplied)
18. In the instant case the complainant was 40 years of age and cannot be said to be an elderly woman.
19. This statement remains unrebutted. No medical expert opinion or medical literature has been shown to the contrary, in view of which this plea is without merit.
20. It is also not in dispute that when the patient was being prepared, the consent letters signed by her clearly stated that she had been explained as to what is going to be done during the surgery, which is supported by the affidavit of the appellant. In view of this it does not lie in the mouth of the complainant to now state that she was shocked on being told that uterus was removed. She has signed a consent for this purpose which must be presumed against her pleading, that she was taken unawares on the point of removal of uterus. In our view the State Commission could not dismiss an informed consent, the way it did.
21. In the aforementioned circumstances and in view of the material brought on record and the expert opinion especially that of Dr. Srinivasan, he being a family doctor, and his reference letter as also the follow up action taken by the appellant, under no circumstances can be said to be a case of medical negligence especially when the complainant consented with open eyes for removal of lump in the breast as also for total Hysterectomy. There is no denial by her that she had not consulted a Gynaecologist before approaching the family Doctor, i.e., Dr. Srinivasan. The complainant was the carrier of the letter and the contents would be known to her. Her not making Dr. Srinivasan a party to the complaint speaks more about the complainant. The appellant in our view observed the duty of care expected from a large body of professionals like him.
22. In the aforementioned circumstances, we are unable to sustain the majority order of the State Commission. This appeal is allowed and the majority decision of the State Commission is set aside and the complaint stands dismissed.
23. In the peculiar facts and circumstances of the case we refrain from imposing costs on the complainant.