State Consumer Disputes Redressal Commission
Johnson Gomez, vs Dr.Bindu Muraleedharan, on 19 May, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram Complaint Case No. CC/07/10 1. Johnson Gomez Carmel House,TC.76/997,Anayara PO,Tvpm BEFORE: HONARABLE MR. K.CHANDRADAS NADAR PRESIDING MEMBER PRESENT: ORDER
CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
CC.NO.10/07
JUDGMENT DATED: 19.05.2012
PRESENT
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
SHRI.S. CHANDRAMOHAN NAIR : MEMBER SMT.A. RADHA : MEMBER 1. Johnson Gomez, S/o Late Agnes Gomez, Carmel House, T.C.76/997, Anayara.P.O, TVPM-29. : COMPLAINANTS 2. Merina Anto, D/o Agnes Gomez, Teacher. (By Adv:Sri.Kazhakkuttam K.s. Narayanan Nair) Vs. 1. Dr.Bindu Muraleedharan, Gynaecologist, Smt. Anne's Nursing Home, Naalumukku, Pettah, TVPM. 2. M/s St.Anne's Nursing Home, Naalumukku, Pettah, TVPM. : OPPOSITE PARTIES R/by its Administrator. 3. The Holy Cross Convent, Kottiyam, R/by its Mother Superior. (BY Adv:Sri.K.Muraleedharan Nair & Jaideep.G.Nair) JUDGMENT SHRI. K. CHANDRADAS NADAR: JUDICIAL MEMBER
This is a complaint filed under section 18 of the Consumer Protection Act, 1986. The 1st opposite party is a Gynaecologist attached to the 2nd opposite party, St. Anne's Nursing Home, Pettah, Thiruvananthapuram. It is alleged that the 3rd opposite party owns the nursing home. The allegations on which the complaint is founded are that the mother of complainants, Mrs. Agnes Gomez aged 53 years was in very good health wherein she approached the nursing home on 11.4.2007 with a mild abdominal pain. The 1st opposite party examined Smt.Agnes and prescribed tablets. On 11.4.2007 the doctor directed her to take US scan from Metro Scans. The scan showed the presence of a small cyst 1.1 cm in the right ovary of Smt.Agnes. The doctor told her that it was a serious condition and the cyst will enlarge in no time and burst and that may be fatal and suggested that immediate surgery was inevitable. In fact the cyst was very insignificant and curable by medication. The operation was fixed on 3.5.07. The nursing home had poor facilities for conducting such a major operation. Hence fearing that Agnes may desert the hospital and approach some other hospital, the 1st opposite party hurriedly preponed the surgery to 2.5.07. As directed by the doctor. Smt.Agnes got admitted in the Nursing Home in the afternoon on 1.5.07. At the time of surgery contrary to the assurance given no general surgeon was present, nor was an Urologist present. Only a nurse attached to the hospital and another sister were present. The operation theatre was a dirty room. The hospital as a whole was in an unhygienic condition.
2. Smt.Agnes subsequently developed restlessness. Her condition worsened followed by stomach ache, vomiting and constant high fever. A pus-like thing was oozing out of the stitches. Smt.Agnes was not given proper after care. Her condition worsened further and all on a sudden she was discharged from the hospital at noon on 9.5.07. At the time of discharge the condition of Agnes was so bad that she could not even take food. As her condition worsened further she was readmitted in the nursing home on 11th but was kept therein for 10 hours only and was given medicines and drips. On 14.5.07 she was again readmitted. From medical tests it was revealed that the infection that followed the operation had reached the worst condition. The infection was caused by the negligence on the part of the hospital and the doctor. Giving of too much antibiotics on experimental basis right from the beginning also had lead to side effects. Diabetes had developed. Pulse and BP came down. Urinary block also developed. On 18.5.07 the condition of Smt.Agnes was very critical and the mother of the nursing home suggested that she may be transferred to some other hospital for expert treatment. At 6 am the doctor prepared a medical report and insisted that Smt.Agnes should be taken away from the nursing home immediately. The approach of the doctor was that even if Smt.Agnes died the fault of the doctor should be swept under the carpet.
3. Though operation was conducted to remove the right ovary which had a small cyst, scan on 17.5.07 revealed that only portion of the right ovary was removed. Smt.Agnes was admitted in the Lord's Hospital. The infection in the right ovary of Agnes worsened further and on 22.5.07 laparoscopy was conducted for removing the remaining portion of the right ovary, the pus therein and the fluid that had collected in the ovary. Scan on 17th revealed that during the operation held on 2.5.07 by the 1st opposite party, right ureter was cut and urine was leaking through it, the injured part was infected and pus had formed. The ureter was cut only due to the fault of the 1st opposite party and her negligence. The cut to the ureter must have been noticed by the doctor as she had put 2 knots in the ureter. The operation ought to have been conducted only in the presence of General Surgeon, Urologist etc. The doctor surreptitiously attempted to conceal the truth from the relatives of Agnes. Had the doctor told them that the ureter was cut, they would have instantaneously taken her to an Urologist. In short Smt.Agnes died due to negligence and fault of the opposite parties. The doctor ought to have anticipated, fatal complications from the injury to the ureter. The leaked urine had collected in the abdomen leading to septicaemia and sepsis resulting in to multi organ dis-function and ultimately septic shock. When Smt.Agnes developed Broncho-pneumonia caused by the infection arising from the injury to the ureter her blood pressure came down. She was transferred to the KIMS Hospital on 2.6.2007 for being treated by a Respiratory Physician. Despite best efforts of 5 doctors at the Lord's Hospital and KIMS Hospital Smt.Agnes could not be saved and she died on 3.6.07.
4. Before the surgery on 2.5.07 Smt.Agnes was quite healthy. Agnes was a tailor by profession earning an income of Rs.20,000/- per month. She was looking after the affairs of the complainants and was loving and affectionate to them. The complainant's lost all these with her death. The nursing home gave complainant's a bill for Rs.20,000/- for surgery and other expenses. Rs.1,00,493/-, Rs.39,346/- and Rs.22,433/- were spent at the Lord"s Hospital, KIMS Hospital and the nursing home respectively. Thus, a sum of Rs.1,82,272/- was spent for the treatment of Smt.Agnes. The critical condition of Smt.Agnes forced the first complainant, her son to desert his job abroad. The relatives of Smt.Agnes were with her throughout. So, the complainants are entitled to realize compensation on the said accounts. The opposite parties are jointly and severally liable to pay for the pain and suffering of Smt.Agnes and towards loss of her life. The failure of the opposite parties to settle the claim, despite lawyer's notice is the cause of action for the complaint.
5. The 1st and 2nd opposite parties filed joint version and the 3rd opposite party filed separate version. According to them, the 3rd opposite party has nothing to do with the nursing home and the 3rd opposite party is an unnecessary party to the proceedings. Opposite parties 1 and 2 contented that the patient had history of two previous laparotomies one for appendictomy 12 years back and another for hysterectomy 10 years back. She met the 1st opposite party during 2005 with complaint of pain in the right abdomen. She was symptomatically treated. Thereafter she had visited the 2nd opposite party with various somatic complaints. On 12.3.07 she came with complaint of pain on the right side of lower abdomen of 3 days duration. The previous history of the patient was considered and she was given medicines to relieve pain. She was advised Ultra Sound scan if pain persisted. In April, 2007 the patient came with an Ultra Sound scan report which showed a Dermoid cyst of 1.1 x 1Cm in the right ovary. As it was a potentially malignant tumour (2% chance for it to turn malignant) and as her persistent pain might have been due to adhesions formed as a result of previous surgeries, she was advised another surgery for removal of the tumour along with 2 ovaries and for adhesiolysis. The 1st opposite party explained all these to the patient and that she might not be able to remove the ovaries completely even with the help of a surgeon who would be arranged if required. The patient was advised surgery on 12.4.07 and as there were no waiting cases she was informed that the surgery could be done at her convenience. She said that her son would be coming only by the month end, so the date was fixed on 2nd May, 2007. Allegations such as the nursing home was ill-equipped for such a surgery, the condition of the hospital was un hygienic etc are denied. The hospital being a charitable one the charges for surgery and inpatient care was definitely less, than in the nearby hospitals and the relatives of the patients were aware of this. The opposite parties had arranged the assistance of Surgeon, Dr.Suresh. As he had to go for his routine work at 8.30 am, this surgery was posted for 6.30 am. As there was no serious difficulty in entering the peritoneal cavity despite adhesions and the patient had to pay an additional Rs.2000/- if surgeon was called, Dr.Suresh was not called during the surgery. Dr.Helen a retired Civil Surgeon who was on duty till 10 pm stayed back and it was Dr.Helen who assisted the 1st opposite party in doing the surgery. After surgery the patient was discharged on 9th May which was the normal routine in any abdominal surgery. She had only mild fever on 3rd and 4th post operative days which was effectively treated by antibiotics and she was taking normal food. It is incorrect to say that she was forcibly discharged. The patient was re-admitted on 14.5.07, 5 days after discharge, with fever and vomiting. Examination of the patient by 1st opposite party and Dr.Prakash did not reveal any positive findings. She was treated for infection with antibiotics. As fever persisted a Physician was consulted and he too found nothing but infection and prescribed strong antibiotics. As fever and vomiting persisted, even after that another Ultra Sound scan was done on 17.5.07 which revealed peritoneal inclusion cyst and infection was found in the abdominal cavity. Peritoneal inclusion cyst occurs in a person who had undergone many laparotomies, getting an infection and it is due to adhesions. Surgery consultation was done. The surgeon, Dr.Suresh prescribed yet another antibiotic because that is the treatment for peritoneal inclusion cyst. As fever still persisted the patient was referred to the surgery casualty of Trivandrum Medical College Hospital. Major surgeries are being done in the nursing home since 1995. Till date there is no history of death following surgery in this hospital. The 1st opposite party had explained to the daughter of the patient that due to adhesions sometimes complete removal of the ovaries might not be possible. There were more adhesions on the right side than on the left side. So to prevent injury to nearby ureter, deep dissection was not done on the right side and part of the right ovary could not be removed though the tumour and the whole of the left ovary was removed.
6. The complaint is bad for non jointer of necessary parties. The Lord's Hospital and the doctors who had operated on the patient on 22.5.07 are necessary parties to the complaint. Dermoid cyst cannot be cured by medicines. The 1st opposite party performed the operation carefully and nothing untoward had happened. Nothing was concealed as alleged. The allegation that ureter was cut and 2 knots were put in the ureter is false. The other allegations against the opposite parties are also false. The patient was a poor widow without any income at all. The bill for the surgery was Rs.15,050/- and the 2nd bill for Rs.2,000/- was not paid. The claim made on account of the money spent for the patient is exaggerated. No damage or loss was caused to the complainants by the treatment given to the patient by the opposite parties. They have treated the patient with care and professional competence of reasonable standards. There was no fault, negligence or incompetence as alleged. There was no deficiency in service. The claims made under various heads are exaggerated claims. No amount can be claimed from the opposite parties.
7. The 2nd complainant gave evidence as PW1, Dr.Haridas who treated the deceased at the Lord's Hospital, Trivandrum was examined on the side of the complainants as PW2. The 1st opposite party gave evidence as DW1. Three witnesses including 2 doctors were examined on the side of the opposite parties as DWs 2 to 4. Exts.A1 to A39 (series) were marked on the side of the complainants. Exts.B1and B2 were marked on the side of the opposite parties. Ext.X1 is the medical records relating to the patient produced from the Lord's Hospital. After the closure of evidence arguments were heard.
8. The points that arise for consideration are:-
1. Whether the 1st opposite party was negligent in conducting the operation of deceased Agnes Gomez on 2.5.07 as alleged?
2. Whether complications developed as a result of injury to right ureter of Smt.Agnes during the said operation?
3. Whether the complainants are entitled to realize compensation? If so what is the quantum?
9. Point Nos.1 & 2:-
Smt.Agnes Gomez, the mother of complainants 1 and 2 died on 3.6.07. The allegations as already seen are that, her death was caused by the complications arising from a surgery done by the 1st opposite party on 2.5.07 at the St.Anne's Nursing Home, Pettah. On the said day right ovariotomy and left oophorectomy were done. Ext.A7 is the discharge card issued from the St.Anne's Nursing home. It shows that the operation was performed to remove a dermoid cyst in the right ovary. It is the case of the complainants that their mother approached the hospital with complaint of pain in the abdomen. Initial treatment with pills was of no use. Hence as directed by the 1st opposite party, ultra sound scan was taken on 11.4.07. When she approached the doctor with the scan report surgery was suggested. It was accordingly, Smt.Agnes got admitted in the hospital on 1.5.07 and surgery was performed on 2.5.07. She was discharged from the hospital on 9.5.07. The allegation that she was re-admitted on 11.5.07 and she was retained in the hospital for 10 hours is not admitted by the opposite parties. But it is admitted that Smt.Agnes got re-admitted in the hospital on 14.5.07 with fever and vomiting. Another scan was taken on 17.05.07 and a surgeon was consulted on 18.5.07. Immediately the patient was referred to the surgery causalty of the Medical College Hospital. But Smt.Agnes was admitted in the Lord's Hospital on 18.5.07. Initially, PW2 also was the Surgeon in the Lord's Hospital conservatively treated Smt.Agnes, but her condition did not improve. Hence operation was performed on 22.5.07. Septicemia developed and later the patient showed signs of acute respiratory distress syndrome. Thereupon, she was referred to the KIMS Hospital on 2.6.07. She was put on ventilator there and she died on 3.6.07.
10. The allegations as seen already are that the St.Anne's nursing home did not have the facilities to conduct major surgery, the conditions there was unhygienic, the 1st opposite party who performed the operation acted negligently and during the operation cut the ureter resulting in leakage of urine and infection which ultimately developed into septicemia and acute respiratory syndrome resulting in the death of Smt.Agnes. Negligence on the part of the 1st opposite party is denied. The learned counsel for opposite parties 1 and 2 pointed out relying on Law of Damages and Compensation by Kameshwara Rao, 5th Edition that since charge of professional negligence against a medical person is alleged. The burden of proof is correspondingly greater as it affected his professional status and reputation. The allegations stood on different footing to a charge of negligence against the driver of a motor car. As the charge is so grave should the proof be clear. A doctor is not to be held negligent simply because something went wrong. He is not liable for mis-chance or mis-adventure or for an error of judgment. He is not liable for taking one choice out of 2 for favouring once who rather than another. He is only liable when he falls below the standard of a reasonably competent practitioner in his field so much so that his conduct might be deserving censure of inexcusable (vide page 2604) quoting the passage from Lord Denning in Hucks Vs. Cole.
11. In an action for negligence the burden of proof falls upon the plaintiff alleging it. The degree of skill and care required from a medical practitioner is neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case. A person is not liable in negligence because some one else of better skill and knowledge would have prescribed different treatment or operated in a different way, nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men (vide page 2604 and 2605). It is wrong and bad law to say that simply because a mishap occurred the hospital and doctor are liable. A doctor should be found guilty only when he had fallen short of the standard of reasonable medical care when he was deserving of cencune. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of it acting with reasonable care (vide page 2605). A medical man is not an insurer. He does not warrant that his treatment will succeed or that he will perform a cure. Naturally he will not be liable by reason of some peculiarity in the frame or constitution of a patient which was not reasonably anticipated, a treatment which in ordinary circumstances would be sound has unforeseen results. He will not even be liable for every slip or accident. In all cases the facts proved must be sufficiently compelling to give rise to an interference of negligence a mere conjecture will be insufficient (vide page 2606). A mistaken diagnosis is not necessarily a negligent diagnosis (vide page 2607).
12. The learned counsel also relied on the decision reported in III (2009) CPJ 95 Late Baby Ankita Kapoor Vs. Christian Medical College Hospital & Others to argue that in the absence of expert evidence to prove allegations made in the complaint it is to be held that the alleged deficiency in service and medical negligence are not proved. He further relied on I (2008) CPJ 201, Mini & Others Vs. G.Mohan (DR.) & Others to urge that when no expert evidence or medical literature is produced by the complainant to contradict the expert evidence supported by medical literature brought on the side of the opposite parties the onus to prove negligence is not discharged by the complainant. The decision reported in I (2009)CPJ 263 Kamla Bai Pandey Vs. DR.P.C.Dwivedi & Another is also relied on to urge the same points.
13. The contention is that the complainants have not adduced any expert evidence to prove the negligence alleged. On the contrary the opposite parties have examined two experts as DWs3 and 4 to prove that the course of treatment chosen by the 1st opposite party was the one that would usually be adopted by Gynaecologists in the medical profession. But PW2 is a surgeon who treated the deceased and he has given evidence in the case on behalf of the complainant. What is required is an appreciation of the entire evidence and circumstances available in the light of the legal parameters referred to earlier to decide the existence or non existence of medical negligence. To reiterate this Commission is not expected to hold the opposite parties negligent simply because the operation went wrong. The question is whether the 1st opposite party did not exhibit the care and caution expected of a normal medical practitioner of normal standards. Simply because ureter was cut during the course of operation, negligence cannot be attributed. But immediately the question is whether she has taken sufficient care to locate the injury then and there or at the earliest opportunity and took remedial measures accordingly as expected from a medical practitioner of reasonable standards. The decision relied on by the learned counsel for the opposite parties reported in (2005) 6 SCC 1, Jacob Mathew Vs. Sate of Punjab and Another, was rendered in a criminal complaint and the standard of care expected there is a higher one. So, available evidence will have to be appreciated in the background of the legal principles mentioned above.
14. The complainants want us to take the inference that opposite parties 1 and 2 were negligent from the following circumstances. According to them upon taking the ultra sound scan and confirming the presence of dermoid cyst the doctor falsely told Smt.Agnes that operation was unavoidable. Secondly, the doctor went ahead with operation though no sufficient facility was available in the hospital. Thirdly said operation ought to have been conducted in the presence of a surgeon and a Urologist. That was not done. Fourthly, no proper after care was given to Smt.Agnes. Fifthly contrary to the assurance that the entire right ovary would be removed later it came out that only portion of the right ovary was removed. Sixthly due to the negligence on the part of the 1st opposite party the right ureter was cut. Two stitches were put at the cut portion of the ureter. Through the cut portion urine was found leaking and that started the infection resulting in all the complications and the fact that the ureter was cut was not intimated to the complainants immediately.
15. At the outset we may say that there is absolutely no proof for allegations such as the hospital works in unhygienic conditions and the hospital lacs facilities needed for major operation. It is the law that a wrong diagnosis is not necessarily a negligent diagnosis. Complainants appear to have a case that the cause of the abdominal pain initially complained of by Smt.Agnes was not properly diagnosed. The doctor went ahead with operation once dermoid cyst was found on the right ovary. The extreme case of the complainants that the dermoid cyst can be treated by medication is not acceptable. However the cyst was a small one. Infact Ext.A1 scan on the basis of which presence of dermoid cyst in the right ovary was confirmed, does not indicate the dimensions of the cyst. However it is not a disputed fact that it is a small one of 1.1 x 1 cms. Two reasons are advanced to justify the decision to operate the patient. Firstly it was pointed out that there was 2% chance of the cyst turning out to be malignant. Secondly it is clear from the version filed by opposite parties 1 and 2 that the doctor suspected the formation of adhesions in the light of the 2 previous surgeries undergone by the patient 12 years and 10 years back respectively. But Ext.A7 discharge card issued from the nursing home shows that during operation only minimal adhesions were noted. I am not suggesting for a moment that the doctor could have visualised the extent of adhesions inside the peritoneal cavity before operation. We have pointed out this aspect because of the contentions taken to justify the operation. Not only that, the contention in paragraph 9 of the written version filed by opposite parties 1 and 2 reads there were more adhesions on the right side than on the left side and so, to prevent injury to nearby ureter deep dissection was not done on the right side. Thus, part of the right ovary couldn't be removed, though the tumour and whole left ovary was removed. The said contention is patently false. So it is doubtful whether serious attempt was made to correctly diagnose the cause of pain in the abdomen before operation was decided. The decision to conduct operation to remove the cyst of size 1.1 x 1 cm on the ground that there was 2 percent chance of it turning malignant is also not fully justified. It is an admitted case that during operation no Urologist was present. The contention is that Dr.Satheesh kumar a surgeon was arranged but he was also not present. Another Surgeon Dr.Helen whose duty time was over allegedly stayed back and she was present during operation. But if as a matter of fact the ureter was cut at the time of operation it could have been repaired properly only by an Urologist. Admittedly there was no facility to summon an Urologist. The contention urged was that injury to ureter very often happens in this sort of operations. In fact the learned counsel for the opposite parties urged relying on authorities that no one would become a gynaecologist before injuring ureter. Even if that is the case professional competence required that such injury should be located possibly then and there and remedial if for some valid reason that did not happen it was the duty of the doctor to identify the cause once complications arose. In this case admittedly Smt.Agnes reported back with fever and vomiting and was admitted on 14.5.07. No doubt conservative treatment by antibiotics is one of the modes of treatment and it may not be possible to find fault with the doctor for adopting such a course. But if as a matter of fact she was aware of the fact that the ureter was cut during operation itself she should have taken immediate remedial measures at least when the patient reported back on 14.5.07. Sonography of abdomen and pelvis taken (Ext.A11) showed fluid collection inside the abdomen and suspected pelvic abscess and on 18.5.07, the patient was referred to the surgery casualty of Medical College Hospital, Trivandrum. Ext.A15 is the referral letter. It mainly mentions that Ovariotomy for dermoid cyst (right ovary) and left Oophorectomy were done 16 days back and the patient was complaining of persistent fever and vomiting occasionally since one week. Nothing is mentioned about the ureter injury or whether the doctor suspected ureter injury. At this context the evidence of the doctor as DW1 becomes relevant. She deposed that to treat tissue infection following surgery antibiotics would be sufficient. She admitted that from the scan she understood that there was fluid collection inside the body. Further, since the ureter was dilated she suspected that the collected fluid could be urine. She justified the administration of antibiotics by saying that since the patient had 3 previous abdominal surgeries when there was infection complication of peritoneal inclusion cyst can happen. The prescribed treatment for that are antibiotics. To a direct question whether urine collection in the abdomen happens only when ureter is cut she answered in the affirmative. She further admitted that to remedy ureter injury there was no facilities in her hospital. Hence she referred the patient to the surgery casualty of the Medical College Hospital, Trivandrum. The above evidence indicates that the 1st opposite party was in all probability aware of the ureter injury at the time of operation itself. Then the only inference possible is that she also failed to give proper aftercare to the patient.
16. The main trend of cross-examination of PW2 who subsequently treated the patient at the Lord's Hospital, appears to be that in fact PW2 might have been negligent and he himself initially followed the course of treatment adopted by the 1st opposite party. It is true that for about 4 days from the date of admission in the Lord's Hospital the course of treatment adopted was conservative one by administration of antibiotics. It is also true that an intelligent Physician should have suspected injury to ureter from Ext.A11 itself. It further appears that Ext.A16 ultra sound scan also showed more or less the same results. But ultimately the surgery to correct the ureter injury was done only on 22.5.07. But it can not be said for a moment that the cause of infection was the surgery at the Lord's Hospital or the very reporting back by the patient in the nursing home with complaints of fever and vomiting showed that there was infection. The condition only worsened later and never the patient showed improvement. In the light of the evidence already discussed it is only to be held that the cause of infection happened in the nursing home itself. Therefore even if the course of treatment adopted at the Lord's Hospital was faulty, the initial negligence if any on the part of the 1st opposite party cannot be transferred to the Lord's Hospital.
17. It is also pertinent to notice Ext.A29 medical report, original of which is found in Ext.X1 case records produced from the Lord's Hospital. It refers to the emergency laparotomy carried out on 22.5.07. The details of the laparotomy done are found in Ext.X1 also. It is mentioned that on opening the abdominal and intestinal adhesions were found. There was about 100 mls of fluid in pelvis. There was intermittent leak of urine from the right lower ureter near uterovesical junction. Two knots were found going through the ureter. The right lower ureteric injury was explored repaired and double-J-stenting was done by consultant Urologist Dr.V.Satheesh Kumar and peritoneal levage was done. The patient showed initial improvement but subsequently the condition worsened. Acute Respiratory Distress Syndrome was suspected and she was transferred to the KIMS Hospital on 2.6.07. She died on the next day. We have explained how it cannot at all be said that the cause of infection happened at the Lord's Hospital. If that be so, the knots found at the time of operation on 22.5.07 are significant and shows that the 1st opposite party actually was aware of the ureter injury at the time of operation on 2.5.07 itself and she attempted an improper course of remedy by stitching the injury which ultimately proved fatal. The ultra sound scan taken on 18.5.07 at the Lord's Hospital itself showed a dilated ureter. In fact at the time of operation on 22.5.07 the right ovarian cyst area was seen infected. There was intermittent urine leak from the lower ureter right. Thus, the evidence on the whole show that the injury to the right ureter in all possibility happened during the surgery performed by DW1 on 2.5.07 and she was aware of the same then and there but took no effective step to remedy the same properly. The opposite parties produced Ext.B2 to show that PW2 was earlier found by this very commission, liable to pay compensation for the negligent performance of a surgery but that is not relevant in this case either to find that he was negligent in treating Smt.Agnes or to disbelieve his evidence. The opposite parties examined DWs 3 and 4 mainly to show that the initial diagnosis and the course of treatment adopted when the patient reported back with infection was possible course of treatment and therefore the doctor cannot be held liable for negligence but we have highlighted the different reasons why opposite parties 1 and 2 cannot be exonerated from the allegation that they were negligent in performing the surgery on 2.5.07 which resulted in complications and subsequent death. True no post mortem examination was done to ascertain the cause of death. But the available evidence give clear indication as to cause of death of Smt.Agnes. In short we are inclined to hold that the 1st opposite party performed the surgery on 2.5.07 in a way not expected of a doctor of reasonable competence and therefore she is liable to compensate the complainants. The 2nd opposite party being the employer of the 1st opposite party is equally liable.
18. This leads to another contention on the opposite parties that the 3rd opposite party is in no way connected with opposite parties 1 and 2. The allegation is that the 2nd opposite party nursing home is owned by the 3rd opposite party. To show this there is no evidence. But at the most the 3rd opposite party would be entitled to costs because of the mis-jointer. But having regard to the over all circumstances we are inclined to disallow costs to the 3rd opposite party.
19. The opposite parties have also contended that infact the negligence happened at the Lord's Hospital. Hence the said hospital and PW2 who performed the surgery are necessary parties but we have not accepted this contention. It follows that this contention of the opposite parties is only to be rejected.
20. Point No:3:-
The complainants have claimed Rs.1,82,272/- towards medical expenses. Tthey have claimed Rs.10.lakhs towards pain and sufferings of Smt.Agnes and Rs.20.lakhs towards loss of life of Smt.Agnes. The 1st complainant has in addition claimed Rs.10.lakhs for the alleged loss in employment in Abudabi. The loss of employment if any is only ancillary result and has no direct connection with the alleged negligence and therefore the 1st complainant is not entitled to realize any amount on that account. The main medical bills produced by the complainants would amount to Rs.1.25 lakhs approximately. In addition there are several bills effecting payment for the purpose of conducting medical tests, scan etc. Expenses for transport are also involved. Taking into account all these the complainants can be awarded an amount of Rs.1,50,000/- towards the expenses for treatment of Smt.Agnes as a result of the negligence on the part of the opposite parties 1 and 2. The allegation is that Smt.Agnes was a tailor earning Rs.20,000/- per month. To show this there is no acceptable evidence. It appears that she was a house wife. However reasonable income from her for the benefit of the family can be attributed. She was 53 years old at the time of her death. Taking into account these and other relevant aspects Rs.1.5 lakhs can be awarded to the complainants towards loss of life of Smt.Agnes and consequent loss of income and her service etc. Rs.25,000/- can be reasonably awarded towards pain and sufferings of the deceased. Thus we are inclined to award total compensation of Rs.3,75,000/- to the complainants.
In the result the complaint is allowed as below. Opposite parties are jointly and severally directed to pay compensation of Rs.3,75,000/- to the complainants with a cost of Rs.15,000/- within a period of 2 months failing which the amount will carry interest at the rate of 9% per annum from the date of this order.
K. CHANDRADAS NADAR : JUDICIAL MEMBER S. CHANDRAMOHAN NAIR : MEMBER A. RADHA : MEMBER VL.
APPENDIX
WITNESS FOR THE COMPLAINANT
PW1 : Marina
PW2 : Dr.Haridas
WITNESS FOR THE OPPOSITE PARTIES
DW1 : Dr.Bindu Muralidharan
DW2 : Smt. Grace
DW3 : Dr.G.Venugopal
DW4 : Dr.Prasannakumari
EXHIBITS ON THE SIDE OF THE COMPLAINANTS
Ext.A1 : Scanning report from Metro Scans, Thiruvananthapuram, dated:11.4.2007.
Ext.A2 : DDRC bill dated:17.4.2007
Ext.A3 : Biopsy/Cytology report dated:17.4.07 from DDRC Well-Spring Path Lab, TVPM.
Ext.A4 : Biopsy/Cytology report dated:2.5.07 from DDRC Well-Spring Path Lab, TVPM.
Ext.A5 : DDRC Bills dated:2.5.07
Ext.A6 : Receipt dated:9.5.07 from the St. Anne's Nursing Home, TVPM.
Ext.A7 :Discharge card from St.Anne's Nursing Home, TVPM dtd:9.5.07
Ext.A8 : Bills from the Community Pharmacy Services dt:14.5.07
Ext.A9 : Bills from the Community Pharmacy Services dt:16.5.07
Ext.10 : Bills from the Community Pharmacy Services dt:16.5.07
Ext.A11 : Scanning report from Metro Scans, TVPM dt:17.5.07
Ext.A12 : Bills from the Community Pharmacy Services dt:17.5.07
Ext.A13 :Metro Scans Bill dt:17.5.07
Ext.A14 :Receipt dt:18.5.07 from the St.Anne's Nursing Home, TVPM.
Ext.A15 :Reference letter dt:18.5.07 issued from the St.Anne;s Nursing Home, TVPM.
Ext.A16 :Ultra Sounds Scan report from Lords Hospital, TVPM. Dt:18.5.07
Ext.A17 :OP Bills from 18.5.07, 12 sheets from the Lords Hospital, TVPM.
Ext.A18 :Ultra sound scan report dt:29.5.07 from the Lords Hospital, TVPM.
Ext.A19 : Bills from the Community Pharmacy Services dt:29.5.07
Ext.A20 : Bills from the Community Pharmacy Services dt:30.5.07
Ext.A21 : Bills from the Community Pharmacy Services dt:30.5.07
Ext.A22 :IP & OT Bills dt:30.5.07 from the Lords Hospital, TVPM.
Ext.A23 : Bills from the Community Pharmacy Services dt:31.5.07
Ext.A24 : Bills from the Community Pharmacy Services dt:1.6.07
Ext.A25 :IP Bills dated:2.6.07 issued from the Lords Hospital, TVPM.
Ext.A26 :Cash bill dt:3.6.07 from the KIMS Hospital, TVPM.
Ext.A27 : Cash bill dt:3.6.07 from the KIMS Hospital, TVPM.
Ext.A28 : Cash bill dt:5.6.07 from the KIMS Hospital, TVPM.
Ext.A29 :Medical report dt:8.6.07 from Lords Hospital, TVPM.
Ext.A30 :Case summary dt:9.6.07 from the KIMS Hospital, TVPM.
Ext.A31 :Death certiuficate dt:3.6.07 from the KIMS Hospital, TVPM.
Ext.A32 :Death certificate dt:9.6.07 from the Corporation of
TVPM.
Ext.A33 : Copy of Notice dated:27.6.07 issued by the Complainants to the opposite parties.
Ext.A34 : Postal receipts (3 Nos) dt:27.6.07 for issuing the notices.
Ext.A35 : Postal acknowledgement cards (3 Nos) thereof
Ext.A36 :Reply notice dt:6.7.07
Ext.A37 :Receipt from Metro scans dt:4.11.07
Ext.A38 :Description of medicines 26 in number from Lords Hospital
Ext.A39 :Lab reports 15 in number from Lords Hospital
EXHIBITS ON THE SIDE OF THE OPPOSITE PARTIES
Ext.B1 : Lab reports, case summary and other documents of St. Anne;s Nursing Home.
Ext.B2 : Copy of Judgment dated:20.06.08 of OP.6/05 by Shri.M.V.Viswanathan, Judicial Member.
Ext.X1 : Surgical case records from Lords Hospital
K. CHANDRADAS NADAR : JUDICIAL MEMBER
S. CHANDRAMOHAN NAIR : MEMBER
A. RADHA : MEMBER
VL.
[HONARABLE MR. K.CHANDRADAS NADAR] PRESIDING MEMBER