National Consumer Disputes Redressal
Shah Hospital & 2 Ors. vs Daljeet Kaur & Anr. on 31 August, 2020
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1254 OF 2013 (Against the Order dated 20/12/2012 in Appeal No. 1310/2011 of the State Commission Haryana) 1. SHAH HOSPITAL & 2 ORS. THROUGH ITS PROPRIETOR DR. MAHINDER SINGH SHAH,
OPP BUS STAND, KAITHAL HARYANA 2. DR.MOHINDER SINGH SHAH, PROPRIETOR SHAH HOSPITAL, OPP BUS STAND, KAITHAL HARYANA 3. DR. KIRAN V. KUMAR SHAH HOSPITAL, OPP BUS STAND, KAITHAL HARYANA 4. - - - ...........Petitioner(s) Versus 1. DALJEET KAUR & ANR. W/O SH.SHINGARA SINGH,
R/O WARD NO-5, SHAKTI NAGAR,
CHEEKA, TEHSIL GUHLA KAITHAL HARYANA 2. UNITED INDIA INSSURENCE CO. THROUGH INSURENCE CONSULTANT LTD, 54 VINOBA PURI ,LAJPAT NAGAR-II NEW DELHI ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER
For the Petitioner : For the Respondent :
Dated : 31 Aug 2020 ORDER
For the Petitioners : Mr. K. G. Sharma, Advocate
For the Respondent No. 1 : Nemo
For the Respondent No. 2 : Mr. Maibam N. Singh, Advocate
Pronounced on: 31st August 2020
ORDER
PER DR. S. M. KANTIKAR, MEMBER This Revision Petition has been filed against the Order dated 20.12.2012 passed by the State Consumer Disputes Redressal Commission, Haryana (hereinafter referred to as the 'State Commission') in First Appeal No. 1310/11, which allowed the Appeal and set aside the dismissal order of the District Consumer Disputes Redressal Forum, Kaithal (hereinafter referred to as the 'District Forum') and held the Petitioners/Opposite Parties liable for medical negligence.
2. The Complainant - Daljeet Kaur (for short 'the patient') visited Shah Hospital (hereinafter referred to as the Opposite Party No. 1, Petitioner-1) with her complaints of abdominal pain, some menstrual problems and retention of urine off and on for last 2-3 years. The Gynecologist, Dr. Kiran V. Kumar (hereinafter referred to as the Opposite Party No. 3), examined the patient and diagnosed it as a stone in abdomen and suggested an operation for removal of uterus. On 24.09.2007, the Opposite Party No. 3 operated the patient and removed the uterus. The Complainant alleged that she was discharged from the hospital against her will on 28.09.2007 though she was getting pains, but the Opposite Party No. 3 gave assurance that she would get relief within few days. However, she did not get relief from the pain. She again visited the Opposite Party No. 1 hospital on 02.10.2007. The Opposite Party No. 3, after check-up, advised her to continue the same medicines and called her for regular follow-up. Thereafter, the Complainant suffered urinary bladder pain and on 24.11.2007, Dr. Mittal performed some procedure, but she did not get any relief. Thereafter, the patient got admitted in Kidney Centre at Chandigarh, wherein the doctors disclosed that the Opposite Party No. 3, while conducting hysterectomy operation, negligently punctured the urinary bladder. The Complainant, alleging deficiency in service and medical negligence on the part of the Opposite Parties, filed a Consumer Complaint before the District Forum, Kaithal.
3. The Opposite Parties filed their written versions and denied all allegations. It is submitted that the Opposite Party No. 1 Hospital is well equipped having all surgical facilities. The pre-anesthetic check-up (PAC) and fitness for surgery was given by Dr. Sanjeev Jindal (Anesthetist) and the hysterectomy was performed by Dr. Kiran V. Kumar, Opposite Party No. 3 under spinal anesthesia. During operation dense adhesions between uterine fibroid and urinary bladder were noted and it caused great difficulty to remove the uterus along with cervix. After the operation, the Opposite Party No. 3 duly informed the patient's husband that in future patient might suffer urinary problems. Post-operatively for next few hours in spite of administration of IV Fluids and injection Lasix (40mg) there was no urine output. Therefore, the Opposite Party No. 3 called Dr. A. K. Mittal a Senior Uro-surgeon for second opinion, who performed Cysto-urethroscopy under spinal anesthesia, and further relocated the ureters, inserted the stents and abdomen was closed. Thereafter, urinary flow easily started. The patient was discharged on 28.09.2007 with a urinary bladder catheter and advised for weekly follow-up. The patient visited the Opposite Party No. 1 Hospital on 27.11.2007 and stents were removed by Dr A. K. Mittal. At that time, Dr. Mittal noticed that the patient was suffering from Vesico-Vaginal Fistula (VVF) and same was disclosed to the patient and her attendants. She was advised periodic routine checkup.
4. On hearing the arguments of the learned Counsel for the Parties of both the sides and based on the materials on record, the District Forum dismissed the Complaint for want of merit.
5. The Complainant, being aggrieved, filed the First Appeal before the State Commission. The Appeal was allowed and the Order of the District Forum was set aside. The Opposite Parties were directed to pay to the Complainant Rs. 5,00,000/- along with Rs. 22,000/- for the cost of litigation.
6. Being aggrieved, the Opposite Parties have filed the instant Revision Petition.
7. We have heard the arguments and perused the material on record; inter alia, the Order of the State Commission and Medical Record. None present for the Respondent no.1/Complainant.
8. On bare perusal of the operative findings, it is clear that due to large uterine fibroid there were adhesions between bladder and uterus. The Opposite Party No. 3 admitted the difficulty in dissection due to adhesions. Most of the times despite due care, an unwarranted, inadvertent injury to ureters may occur during hysterectomy. It is pertinent to note that the patient did not pass urine after operation; therefore Dr. A. K. Mittal, Urologists was called. He did Cysto-urethroscopy but unable to locate ureters therefore abdomen was opened. The ureters were traced and relocation into the bladder was done and stents were placed. At the time of discharge from the Opposite Party No. 1 Hospital the patient did not show passage of urine through vagina. The patient suffered VVF after the span of three months.
9. The learned Counsel for the Petitioners submitted that the State Commission erroneously held that there was no evidence available on record to show that Dr. Mittal had performed operation of the Complainant. In this context he brought our attention to the Medical Record wherein Dr. Mittal performed Cystourethroscopy and the Findings recorded are reproduced as below:
Operative notes:
S-Dr. Mittal An.- Dr. Sanjeev Jindal Dr. Kiran Ass-Tejpal Ind: ? Bilateral Uretrine blockage .
Cystouretheroscopy was done. Utereteric opening was searched. Stent was tried to insert through the opening but was unsuccessful. Abdomen was re-opened. Both the ureters were traced. Artificial re-implantation of ureters was done on bladder after bladder was opened. Stent were inserted. Urine was found easily coming to the bladder. After achieving hemostasis and counting mops and instruments abdomen was closed in layers.
It is evident that post operatively the patient did not pass urine, therefore, the Opposite Party No. 3 took immediate step for timely intervention through the Urologist, Dr. Mittal. It avoided the grave complication of anuria and subsequent renal problems. In our view, the treating doctors properly monitored the patient post operatively, we do not find any breach in the duty of care from the Opposite Parties Nos. 2 & 3.
10. The medical record shows on 27.11.2009, Dr. A.K. Mittal removed the stents and noticed VVF at that time. Thus, it is apparent that after discharge from the Opposite Party No. 1 hospital for 3 months, the patient had no complaints of passage of urine through vagina. It was a delayed complication of hysterectomy surgery. It was neither deficiency nor negligence of the Opposite Party No. 3 during hysterectomy surgery and it was not a proximate cause of the VVF in the instant case.
11. We have gone through the medical text from the Shaw's Textbook of Gynecology. The complications of hysterectomy surgery are known especially when associated with large or multiple fibroids, endometriosis etc. having pelvic adhesions with urinary bladder or rectum. Moreover, the development of fistula (VVF or RVF) at delayed stage may exist due to trivial thermal injury and the necrosis of the tissue.
12. It should be borne in mind that the doctor is not liable for negligence if he performs his duty with reasonable care. The mode of treatment and skill differ from doctor to doctor. The Hon'ble Supreme Court in the case - Achutrao Haribhau Khodwa and others versus State of Maharashtra and others (1996) 2 SCC 634, held that;
"The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."
In the instant case, the hysterectomy was performed by the Opposite Party No. 3 as per the standard procedure and we do not find any negligence or procedural lapse. After the hysterectomy, the patient was monitored for urine output. Post-operative caseation of urine output was promptly attended with the help of Dr. A. K. Mittal - the qualified Urologist. The patient developed VVF after 3 months of hysterectomy wherein we do not find any nexus between VVF and the hysterectomy performed by the Opposite Party No. 3. Also there is no nexus with the removal of urinary stents by Dr. A. K. Mittal.
13. Considering the entirety of the case, we do not find negligence or deficiency in service from the Opposite Parties during the treatment of the patient. The Order of the State Commission is hereby set aside and the Revision Petition is allowed.
Consequently, the Complaint stands dismissed. In the facts and circumstances of the case the Parties shall bear their own costs.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER