State Consumer Disputes Redressal Commission
The Oriental Insurance Co. Ltd ... vs Shanthi Kadathur Post Dharmapuri ... on 30 September, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt.Vasugi Ramanan, M.A., B.L., MEMBER I Thiru.S.Sambandam, B.Sc., MEMBER II F.A.614/2007 [Against order in C.C.No.82/99 on the file of the DCDRF, Krishnagiri] DATED THIS THE 30th DAY OF SEPTEMBER 2010 The Oriental Insurance Co. Ltd., | P.B. No.19, 1st Floor, | Appellant/3rd O.P. Sidha Veerappa Chetty Street, | Dharmapuri. | Vs. 1.
Shanthi, | R1 / Complainant W/o.Elango, | Vediyur Village, Kadathur Post, | Dharmapuri District. |
2. Dr.Kumudha Sundaresan, | R2 / 1st O.P. K.S.Nursing Home, | No.1, C.K. Srinivasa Rao Street, | Dharmapuri District. |
3. Dr.A.C. Natarajan, | R3 / 2nd O.P. Gunam Medical Centre, | Next East to Dharmapurai Municipal Office, | Kandasamy Vathiyar Street, | Dharmapuri District. | The First Respondents / complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay a sum of Rs.3 lakhs as compensation for deficiency of service and with cost. The District Forum partly allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.20.07.2007 in C.C.82/99.
This appeal coming before us for hearing finally on 15.09.2010. Upon hearing the arguments of the appellant counsel , this commission made the following order:
Counsel for the Appellant /3rd O.P. : M/s.Nageswaran & Narichannia, Advocate.
Counsel for the R1/Complainant : Mr.P. Subramaniam, Advocate.
For the R2 & 3/1 & 2 O.Ps.
: Mr.L.Muthusamy, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The third opposite party is the appellant.
2. The complainant/respondent by name Shanthi was admitted in the first opposite party's Hospital for delivery on 21.1.98, where she delivered a male child, which expired at later point of time. At the time of discharge on 31.1.98, she had incessant urination, for which, though treatment was given, proved to be futile. The unabated urine discharge by the complainant had happened only after LSCS performed by the opposite parties on 22.1.98, which was later diagnosed as Uretaro Vaginal Fistula, for which, she had taken treatment at Sri Sathyasai Baba Hospital, spending large amount.
3. The first opposite party having assured normal delivery, without the consent of anybody, with the help of the second opposite party, performed a hasty surgery, causing the urinary problem, for which, medical negligence, both the opposite parties should be held responsible, which should be reimbursed by the third opposite party, who had given an indemnity insurance policy. The legal notice issued, claiming a sum of Rs.3 lakhs, failed to collect the amount and the result is the complaint.
4. The first and second opposite parties admitting the admission of the complainant in the first opposite party's hospital on 22.1.98, as well the caesarian operation performed upon her on 22.1.98, would contend that there was absolutely no possibility of normal delivery, in view of the fact, the head of feotal was bigger than the path through which delivery was to be effected, which was narrow, that only obtaining the consent for the surgery, meticulous careful surgery/LSCS was performed, through which, she delivered an alive male baby, that either treating the mother or the baby while they were in their custody, there was no negligence of any kind, that the death of baby would be attributed to the prolonged labour, for which, opposite parties cannot be held responsible, that similarly Uretero Vaginal Fistula should have had happened due to prolonged labour pain, since there was no possibility of a cut being caused in the ureter while performing LSCS, that there was no nexus or dependency between the surgery and Uretero Vaginal Fistula, that the Case Records maintained by the opposite parties would establish their expertise, as well as the best treatment given to the mother and baby that they are not liable to answer the claim, since they have not committed any deficiency and in any event, the Insurance Company is liable to pay under the Professional Indemnity (Medicalest), thereby, prayed for the dismissal of the complaint.
5. The third opposite party admitting the Professional Indemnity Policy more or less had taken the same standard, as that of first and second opposite parties, denying the negligence, thereby, praying for the dismissal of the complaint.
6. The District Forum by its order dated 20.07.2007, slapped a direction to the opposite parties, to pay a sum of Rs.2,50,000/- jointly and severally concluding that the first and second opposite parties had committed medical negligence as well as deficiency in service, while treating the complainant, which is challenged only by third opposite party, not by first and second opposite parties, who had performed the surgery as well as treating the complainant, admittedly.
7. Heard, the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.
8. The complainant went to the hospital of the first opposite party on 22.1.98 and got admitted for delivery. She gave birth to a male baby on the same day at about 3.45 p.m. Unfortunately, the said male child expired on 24.1.98 and thereafter the complainant was discharged from the hospital of the first opposite party on 1.2.98. It was not a normal delivery, though there was some kind of prolonged labour and the baby was taken out by performing surgery, namely LSCS, which was attended by the second opposite party also. The above facts are not seriously disputed.
9. The complainant who got admitted in the hospital of the first opposite party, treated by the opposite parties, had unabated urine discharge, after discharge. The complainant not having much faith in the treatment given by the first and second opposite parties, had been to Sri Sathyasai Hospital for treatment, where she was admitted on 22.5.98 and after operation and correction of the problem, she was discharged on 08.06.98.
From the treatment given by Sri Sathyasai Hospital, she came to know that the problem of unabated urine discharge had happened to her, due to the medical negligence caused by the opposite parties in the sense while executing LSCS surgery, they should have caused injury, thereby causing the problem of Uretero Vaginal Fistula. Thus accusing, claiming a sum of Rs.3 lakhs, case has been filed and despite objection, accepting the case of the complainant, a sum of Rs.2,50,000/- was ordered, which is under challenge.
10. The District Forum relying upon Ex.A5 as well as relying on a Text Book called "Howkins and Bourne Shaw's Textbook of Gynecology", came to the conclusion, that Ureterovaginal Fistula should have been caused by the injury inflicted by the first and second opposite parties, while performing Gynecological operation namely in this case LSCS, considering the affidavit of Dr.Kalavathi also, since she has not disputed the Text, relied on by the complainant. Really, first and second opposite parties have not committed any negligence, while performing LSCS, they should have challenged the finding, which they failed to do so, thereby, allowing the said findings to reach finality, as contemplated under law also. Therefore prima facie, complainant is entitled to the relief, as ordered, which cannot be challenged, by third opposite party in this appeal.
11. Admittedly from the third opposite party, first opposite party had taken a professional indemnity (Medicalest) policy for the period 11.07.97 to 10.07.98, covering the limit also to the extent of Rs.2,50,000/-. There are certain conditions also, as seen from the policy including Exclusion Clauses, as well as empowering the Insurance Company to repudiate the claim, on certain grounds. Neither in the Written Version nor in the appeal grounds, third opposite party has taken any stand, such as under the professional indemnity policy, they are not liable to pay the amount, since the second opposite party had committed violation of the terms and conditions of the policy or the act of the first opposite party/assured, should come within the Exclusion or something like that. The medical negligence said to have been committed by first and second opposite parties is not, within the knowledge of the third opposite party. Therefore, if at all, the finding of the District Forum, can be challenged only by the first and second opposite parties, which they failed. If at all the third opposite party can repudiate the claim, on the grounds available under the policy or challenge the quantum and nothing more. As seen from the Written Version as well as in the grounds of appeal also, the third opposite party has not challenged either the quantum or claimed any other violation, thereby, claiming that they should be relieved, for the medical negligence if any committed by the first and second opposite parties.
In this view of the matter, we are of the considered opinion, the appeal filed by the third opposite party, challenging the finding of the District Forum, namely, medical negligence is not maintainable. Assuming as the person assured, they can also challenge, let us see, whether any case has been made out by the complainant or the opposite parties as the case may be, based upon their allegations.
12. The Case Record maintained during the treatment given by the first and second opposite parties for the complainant, would reveal that she was not suffering from any problems such as urine discharge, which was diagnosed as Uretero Vaginal Fistula at later stage. In the Case Record maintained by the first opposite party also, even the condition of the patient at the time of discharge was not properly noted. In the Sworn Affidavit, the complainant has alleged, that she had unabated urine discharge, which was not controlled by the first and second opposite parties, whereas, it was controlled by Sri Sathiyasai Hospital as seen from Ex.A5. Thus, it is seen, when the complainant came to the hospital of the first opposite party, she had no problem of this kind, whereas this problem had occurred only after the treatment given by first and second opposite parties. Considering this fact, nothing prevents us, from drawing an inference that while performingLSCS alone, the first and second opposite parties should have caused injury to the uretary, resulting unabated urine discharge, as rightly held by the District Forum, which is in accordance with standard medical text book also.
13. The District Forum extracted the passage from the Book Howkins and Bourne Shaw's Textbook of Gynaecology, which reads "Urinary Fistula in women most urinary vaginal fistula resulting either by the injury to the ureter track during gynaecological operations or very obstetric damage. Ureterovaginal fistula which is usually caused by injury to the ureter during gynaecological operations. Caesarean section can cause either bladder or ureteric injury which may lead to fistula formation. Rupture of uterus not uncommon in India, if it involves the bladder may result in a fistula, especially when the bladder injury is not recognized or not sutured at the time of surgery. Ureterovaginal fistula may follow injury to the urenery gynaecological operations such as anterior colporrhaphy. When the urinary fistula may develop after operations of this kind if a ligature has included part of either the bladder or the ureter. A urinary fistula developed 7 to 10 days after the operations as a result of sloughing on the part of the ureter included in the ligature.
The symptoms of urinary fistula are caused by continous flow of urine from the vagina. In the anatomical considerations, the various situations in which the ureter is likely to be damaged have been considered. The knife, scissors, clamp (partially or completely applied) needle, ligature and avascular necrosis can all operate to the detriment of the ureter damaged from clamp or ligature may not recognized at the time of fistula formation". From the careful reading of the above passage, not under challenge, since no contra Text also produced, we have to conclude, that because of the injury caused to the uretary while performing caesarean section, the Uretero Vaginal Fistula should have caused.
14. As rightly pointed out by the District Forum, Dr.Kalavathi has not challenged the contention of the complaint, though she would state in the affidavit, first and second opposite parties have not committed any negligence.
In view of the admitted problem, that the complainant suffered Uretero Vaginal Fistula after she had taken treatment from the first and second opposite parties, it is for them, to explain that they are not the cause, since failed, applying the principle of Res Ipsa Loquitor also, we are constrained to say that by the negligence surgery performed by the first and second opposite parties alone, the complainant suffered the problem probably in view of the injury caused to other organs. This finding based upon standard medical text is not at all erased. Though there may be possibility of Uretero Vaginal Fistula, because of prolonged compression effect, on the ureter and bladder, which is not established in this case.
While narrating the history about the treatment taken by the complainant, the complainant has stated about the treatment given by first and second opposite parties also. This fact coupled with the surgery performed by the opposite parties, as rightly held by the District Forum, we are of the firm opinion that they have committed surgery negligently, resulting the sufferings of the complainant, in Uretero Vaginal Fistula, for which, they should pay compensation, which is quantified at Rs.2,50,000/-, not challenged. The complainant though failed to produce necessary documents, to quantify the above said compensation, considering the mental agony, as well as the loss of child, and the subsequent problems for several months, we feel, justifiably that the compensation awarded cannot be taken as higher side, warranting reduction. For these reasons, the appeal is devoid of merits and liable to be dismissed.
14. In the result, the appeal is dismissed, confirming the order passed by the District Consumer Disputes Redressal Forum, Krishnagiri, in O.P.82/99, dated 20.07.2007. Under the facts and circumstances of the case, there will be no order as to cost in this appeal.
S. SAMBANDAM VASUGI RAMANAN M.THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Ns/mtj/Medical/fm