State Consumer Disputes Redressal Commission
. N.Ramakrishnan, 2. R.Pugal ... vs St.Isabel Hospital,No.18, Oliver ... on 10 October, 2013
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : HONBLE JUSTICE THIRU.R.REGUPATHI PRESIDENT THIRU.A.K.ANNAMALAI JUDICIALMEMBERO.P.NO.248/1998
DATED THIS THE 10th DAY OF OCTOBER 2013 Date of complaint : 27.11.1998 Date of Order : 10.10.2013
1. N.Ramakrishnan,
2. R.Pugal Ramakrishnan
3. M.Megalai
4. R.Saravanan
5. R.Arunadevi M/s.K.Rangarajan Counsel for Complainant (They are Legal Heirs of Original Complainant Tmt.R.Indra) All are residing at M-2/39, Rani Mangammal Colony, Dindigal 624 001.
-vs-
St.Isabel Hospital, Rep.by its Head Administrator, M/s.Satish Chandrasekaran No.18, Oliver Road, Counsel for Opposite party Mylapore, Chennai 600 004.
The complainant filed a complaint before this Commission against the opposite party praying for a direction to the opposite party to pay Rs.8,00,000/- as compensation for the hardship, to pay a sum of Rs.4,00,000/- towards mental agony, anxiety and stigma caused to the complainant, to pay Rs.4,00,000/- as medical expenses, cost of the bag, salary for the attenders and to pay costs. The complaint coming before us for hearing finally on 7.5.2013, and heard the arguments on either side, perusing the documents, this commission made the following order.
-2-THIRU.A.K.ANNAMALAI, JUDICIAL MEMBER
1. The 1st complainants wife was admitted in the Hospital of the opposite party on 29.11.1996 for hernia operation. On 30.11.96 she was prepared for the operative procedure and enema was administered. Immediately after the administration of enema, the patient had unbearable pain and she was bleeding. When she reported the same, she was informed that it would heal during the course of post operative treatment and care. The complainant underwent surgery which was performed by Dr.Ravi.
Thereafter, for a period of 12 days she was in the hospital for post operative treatment and was discharged. Even when she was in the hospital, she was repeatedly complaining to the doctors about the pain and bleeding and discharge of motion through vagina. The patients hardship and sufferings increased as the pain become unbearable. Therefore, she consulted doctors at her native place again and they advised her to consult Dr.Chandra Mohan, who after examining her suggested that she must undergo a colostomy operation. Accordingly, she underwent an operation at Sundaravadanam Hospital, Poonamallee High Road, Chennai, on 19.12.1996 and was discharged two weeks later. On 17/02/1997 when Doctor Chandra Mohan reviewed, it was found that the wound had not healed. Therefore, the patient was advised to undergo reconstruction of Sphinctor and closure of the Fistula. Accordingly on 14.04.1997 at Sundaravathanam Hospital, Chennai, she underwent surgery for reconstruction of Sphinctor and closure of the Fistula. She returned to her native place after the surgery and came back to Madras -3- periodically for medical check-up. The punctured portion of fistula had not closed. Therefore, the patient was advised to be on medicines for some more months. Dr.T.C.Chandran advised the patient to undergo another surgery which was done in B.S.S.Hospital, Madras.
2. The rectum was damaged at the time of giving enema by the opposite party as a result of which she had to undergo colostomy operation. Now, she had to carry the motion bag in which the faecal matter is collected. The complainant is unable to attend to other activities.
She had to employ and has employed an attender. Due to carelessness and negligence on the part of the opposite party, it has happened. She was shunned by her own relations.
She was not able to go anywhere.
The complainants side therefore submits that the mental agony and physical hardship and suffering are as a result of the deficiency in service on the part of the opposite party. The complainants therefore in all prays for a compensation of Rs.16,00,000/-.
3. The opposite party has filed a version pleading as follows:- It is true that the complainant was admitted in the hospital on 29/11/96 for hernia operation and Dr.Ravi fixed the operation for 30/11/96. It was a routine preparation and procedure and did not involve any risk. As a pre-operative measure, she was administered enema. There is no scope for any injury having been caused while administering enema because sophisticated method is used. The portion that is inserted in the rectum is absolutely soaked in warm water and only experienced and trained nurses administered enema. The very same -4- procedure was followed for the 1st complainants wife. There was no poking or puncturing of the sensitive organs especially of rectum and vagina. The enema that is administered is the proctoclysis enema which is given after breaking the seal. It is put in salt water and the portion that is inserted is fully softened by keeping it in warm water and hence thee is no scope for causing any puncture or fistula. After operation, the complainant was given usual post-operative treatment. The complainant never complained of pain in vagina or in anus. Nor there was any profuse bleeding. She was discharged to her satisfaction. It is not true to say that she repeatedly complained to the attending doctors about pain and bleeding and discharge of motion through vagina. The opposite parties are not aware whether the complainant consulted any doctor at Dindigul and she came to Madras to consult Dr.Chandra Mohan and Dr.Chandran. The test reports enclosed by the complainant would reveal that there was no symptom at all of any sort of complaint now projected by the complainant. It is stated that the patient was operated upon for rectoviginal fistula. There is nothing on record to show when the fistula came into existence. The complainant already had her uterus removed. The operation for hernia is neither major nor a minor operation. Whatever care that was necessary was taken. There is no negligence on the part of the opposite party. The patient was found fit for operation.
If at all the patient had suffered, it is not because of any wrongful operation done by the opposite party.
The opposite party after receiving the notice of the 1st complainant has sent a suitable reply. The opposite party is not liable to pay any compensation.
-5-4. The points for determination are :
(1) Whether there is deficiency in service on the part of the opposite party ?(2)
To what compensation, the complainant is entitled to ?
5. POINTS : 1 & 2 After framing those above issues and after an enquiry this Commission allowed the complaint presided over by the predecessor members of the bench by directing the opposite party to pay a sum of Rs.7,00,000/- as compensation along with cost of Rs.5000/- in its order dated 13.5.2005 which was challenged by the opposite party before the National Commission, Delhi in F.A.No.261/2005 and as per the National Commission direction in its order dated 16.09.2010 the case is once again taken up for retrial and after an enquiry the order being passed. The Honble National Commission in its order observed in Page-8 as follows:
According to the complainant this bleeding was on account of improper insertion of enema tube which had damaged the wall of her rectum. It is not in dispute that within few days of her surgery at the opposite party Hospital, the complainant was diagnosed as a case of recto vaginal fistula, for which she had to undergo a rectification surgery through Dr.Chandra Mohan within few days of her discharge from the Hospital. What were the circumstances which led to the above complication, and reason which caused the said complication of recto vaginal fistula can better be explained by the said Dr.Chandra Mohan. Learned counsel for the complainant also prays that complainant would like to produce -6- Dr.Chandra Mohan as a witness in support of her claim. In our opinion, it would be expedient in the interest of justice if both the parties are granted opportunity (the complainant to produce Dr.Chandra Mohan and the Hospital to produce the concerned nurse subject to her being available) to establish their respective versions. This will necessitate remand of the case to the State Commission to decide the complaint afresh on the basis of above referred witnesses or any further evidence which may be adduced by the parties.
6. Accordingly the matter was taken up after remanded for the limited purpose of production of witnesses by both sides. The complainants have produced Dr.Chandra Mohan and the Doctor was supplied with necessary interrogatories in the form of questionnaire and after replies were given by him for the same he was also orally examined for the purpose of clarifications relating to the answers given in the questionnaire. The opposite parties have not produced the concerned nurse who was said to have negligently or recklessly inserted the enema proctoclysis without breaking upon the nostril caused the alleged trouble and for the alleged negligence in giving the treatment by the opposite parties. The complainant has come forward to file Ex.A1 to A6 as their documents after remand and the opposite parties have come forward to file the documents Exs.B1 to B42 which are taken into consideration to decide the case. On the side of the complainants Ex.A1 filed to prove that because of the alleged negligent treatment were given till the date of death of the complainant and under Ex.A1 Discharge summary issued by Venkataeswara Hospitals, where the -7- last treatment taken for the repair of paracolostomy hernia done on 22.12.2010 and she was in the hospital till 29.12.2010 in which regarding the past history she was having coronary disease since 2006 and Umbilical hernia repair done on 30.11.1996 which is the cause for entire trouble said to have done without going into the main complications due to improper administration of enema. Further she had Left sigmoid Colostomy done on 13.12.1996, Hysterectomy done in 1990.
This repair done on 22.12.2010 was carried out by Dr.A.Rathinasamy along with Professer.S.M.Chandramohan who had already attended and patient at the first time on 17.12.1996 when the patient undergone first umbilical hernia in the opposite party hospital on 30.11.1996. Subsequently the very same doctor S.M.Chandra Mohan carried out various surgeries in the way of re-constructive rectification surgeries along with other doctors. As per the certificate issued by him under Ex.B12 in which it was stated that she underwent Sigmoid loop colostomy on 19.12.1996 as stage I of the surgery as primary repair of the Recto vaginal fistula was not attempted. She was discharged from the nursing home on 5th Jan 1997 with the advice to come back for defective repair of the fistula, which is to be done with the help of Plastic and Reconstructive Surgeon and she was readmitted on 13.4.97 on 14.4.97 Reconstructive Surgery was performed and discharged on 24.4.97. After clearance from reconstructive surgeon she was taken up for closure of colostomy in Jan 99 and on 1 Jan 99 under general anesthesia, closure of colostomy was done in two layers and she got readmitted on 1.2.99 with painful swelling in lakia and passage of motion per vaginal for 3 -8- days and examination at that time and review by the plastic surgeon was done under anesthesia. Thereafter, they have decided to do Revision Colostomy and staple the distal end of the Colon and on 13.2.99 surgery was done. The Sigmoid colon was mobilized. Hicular cutter was applied to distal sigmoid. Proxmial sigmoid brought out as end colostomy. She was discharged on 19.2.99. Dr.T.C.Chandran, also issued a certificate, dated 25.09.1998 stated that she had a Recto Vaginal Fistula with total destruction of about 3 inches of the anterior rectal and posterior vaginal walls. She was incontinent for feaces. She was operated on 14.4.97 where reconstruction of both vaginal and rectal walls. After complete healing of the wound, it was found that she requires a secondary correction after 6 months. From these details it is clear that the patient Indra was suffering from the Recto Vaginal fistula with total reconstructive of interior parts for which she had undergone continuous treatment up to 2010 and those treatments were mainly given by Dr.Chandra Mohan. Dr.Chandra Mohan who has seen the patient for the first time in the opposite party hospital on 7.12.96. After the Umbilical hernia surgery was done by Dr.Ravi at the opposite party hospital on 30.06.1996 as Dr.Thillai referred the patient. A Discharge summary of the case sheet under Ex.B23 for the entries on 7.12.96 at 10.15 pm recorded as follows:
S/B Dr.Chandramohan, Requested by Dr.Thillai -9- Has undergone umbilical Hernia repair on 30 Nov 96. She hasnt had any other problem recently previous surgeries, Sterilization, hysterectomy Presenting symptoms :
Has frequent stools Lower abdominal Discomfort Oedema loop Clinically, anemic Abdomen : Wound cleaned BS (+) PR Mucus admixed C ? blood Proctoscopy :Visualization poor due to mucus Oedema legs Pitting Has pain on palpating calf Has Eshymotic patch both gluteal regions (? Extravasated blood) Exclude DVT / Exclude Drug Reaction _____________________________ Stop all Drugs Give only Vizylac 1 1- 1 T.Ranitidine 1 0 1 Await Faucal examination report Request Vascular consult Haematology consult if Warranted Plan lower GI evaluation after the acute episode settles.-10-
And advise for giving transfusion of fresh blood for packaged cells and further recorded to renew for the next day. On the next day also he has seen the patient and recorded as follows 10.12.96 P.V : Bluish discoloration + posterior vaginal wall just anterior to Rectum There is a giving in feeling postly over bluish area.
P.R : Same feeling of weakness & giving in feeling anteriorly corresponding to posterior vaginal wall (bluish area).
And on 11.12.96 also the very same doctor seen the patient of prescribed medicines and on 12.12.1996 even though it is recorded as patient comfortable. Bladder training. Complaints of faecal incontinence and also plan for Catheter removal on Tuesday morning and shall review her on Tuesday evening on the same day. But we find no other records for the subsequent date after 12.12.1996. It is clear that the patient was discharged on 13.12.1996 and subsequently as per the Certificate of Dr.Chandra Mohan, under Ex.B32, admitted for subsequent treatment on 19.12.1996 between this period from the date of discharge till re-admission on 19.12.1999 these are all would disclose that the patient was discharged on 13.12.1996 without conclusive diagnosis for the complication of discharge and faecal matter with urine per vagina. The opposite party have not chosen to examine the nurse who administered the enema even -11- though said to have resigned from the service by taking steps through the commission for her appearance by way of summons or to trace out her where about Ex.A12 the summary of treatment received by the complainant at Sundaravadanan Nursing Home issued in the Letter Head of Prof.S.M.Chandramohan. It reads as follows: -
Mrs.Indira, who has been diagnosed to have Rectovaginal Fistula, was admitted at Sundaravadanan Nursing Home on 19 December 96.
She underwent Sigmoid loop colostomy on the same day as stage of the surgery as primary repair of the Recto Vaginal fistula was not attempt. She was discharged from the Nursing Home on 05 Jan 97 with the advice to come back for definitive repair of the fistula, which is to be done with the help of Plastic and Reconstructive Surgeon.
She had evaluation under Prof.T.C.Chandran, Reconstructive Surgeon and she was readmitted on 13 April 97. On 14 April 97-Reconstructive Surgery was performed. Veins gracitis Island myocutaneous flap. (She has details of that from Prof.T.C.Chandran). She was discharged on 24 April 97.
After clearance from Reconstructive Surgeon, she was taken up for closure of colostomy in Jan
99. On 01 Jan 99, under general anaesthesia, closure of colostomy was done in two layers.
She got readmitted on 01 Feb 99 with painful swelling in lakia and passage of motion per vaginum for 3 days.
Examination at that time and Review by the plastic surgeon was done under anaesthesia.
-12-After detailed discussion with the patient and the family, it was decided that we will do a Revision Colostomy and Staple the distal end of the Colon.
On 13 Feb 99, she was taken up for surgery after obtaining informed consent.
Under GA, abdomen entered by midline. There was moderate omental adhesions. Sigmoid colon was mobilized. Hicular cutter was applied to distal sigmoid. Proxmial sigmoid brought out as end colostomy. She was discharged on 19 Feb 99.
8. An expert witness has been examined on the side of the complainant who states definitely that the complication that followed had resulted on account of the failure to observe the precaution while administering the enema. Apparently, either undue force was used or the tip of the nozzle was not properly broken with the result that the sharp edge had caused damage to the rectal mucosa resulting in rectovaginal fistula. On behalf of the opposite party, Dr.Ravi who performed the surgery of umbilical hernia upon the complainant has been examined. He admits that they used M.O.1 type tubes for administering the enema and the tip of the tube has to be broken and inserted into the anus and the contents have to be squeezed into it to facilitate movement of bowels. According to the Doctor, it was done by a nurse. He says that he examined her and did not find any injury and that he used Proctoscopy to examine the last segment of the rectum and he did not find any injury to the same and according to him the complainant did not make any such complaints either at the time of operation or after the operation.
-13-9. Ex.B23 is the case sheet. The case sheet does not contain any reference to the fact that any proctoscopy was conducted nor it contains any notes to show that the Doctor examined the rectum either at the time of operation or before commencing surgery or immediately thereafter. But, there is a telltale evidence available in the case sheet itself to show that there was something wrong with the administration of enema.
At page 4 of the case sheet under the dt.01/12/96, we find the following noting :-
Pt. comfortable. Complaints of pain groin. Not passed flatus. Bleeding /rectum This noting clearly indicates that on 01/12/1996, the complainant complained of bleeding via rectum. She complained of pain in the groin. Hence the statement of Dr.Ravi, is not correct. But, there is nothing in the case sheet to show what was the step taken to redress the grievance of the complainant in this regard. On 05/12/1996, there is another entry stating that phone instructions from Dr.Ravi. Faeces to be sent for C/S. It is contended by the opposite party that the case sheet would show that the complainant was passing stools which would mean that everything was normal but it is to be pointed out that the complainant was on liquid diet till she was discharged from the hospital. Therefore, there could not have been any extra pressure on the rectum during her bowel movement and very probably the fistula was just a nick and had not opened up enough by then. On 07/12/1996 at page 6 of the case sheet, we find the following :--14-
PR mucus admixed C ? Blood Proctoscopy : visualization per vagina due to mucosa.
10. Now, coming to the nurses chart which is marked as Ex.B24 & Ex.B25 it reads Proctoclysis enema given. Result good. There is some overwriting found in this entry.
11. Now, in the state of the materials available, we have to see whether the condition in which the complainant finds herself now is consequential to the deficiency in service on the part of the opposite party. We have the evidence of the expert and we have also MO1 to show that if excessive force is used or if the tip is not properly broken, it is likely to cause nick or puncture or perforation in the rectal mucosa.
According to the expert, Rectovascile is the common membrane separating the vagina from the rectum. He further says that a nick or tear in the rectum will not be revealed or seen in a scan. The fact remains that the complainant had to undergo four surgeries afterwards. A fistula in the rectum cannot occur of its own accord. It is not the case of the opposite party nor they have cited any medical text book to support the same. It is also not the case of the opposite party that the fistula was there already before her admission in their hospital. The records produced by the complainant shows that she ad a rectovaginal fistula for which she underwent corrective surgery-colostomy. This could have happened because of the piercing or puncturing of rectal wall and thus it should have been caused only while administering the enema. The vagina and rectum are separated by thin mucosa or membrane. It is also to be pointed -15- out in this context that the opposite party have not chosen examine the said nurse who administered the enema nor has filed any affidavit from her and thereby we are of the view that the negligence of the opposite party in giving treatment to the patient clearly established by the complainants side.
Hence from the materials placed before us we have no hesitation in holding that there was deficiency in service due to negligence and carelessness in their duty to observe necessary care and caution in the administration of enema by adopting due procedure or without properly breaking the tip thereby causing the damage in the rectovaginal wall on account of which the patient had suffered and had to undergo corrective surgeries later on. Therefore, we hold that there is deficiency in service on the part of the opposite party.
12. Now, coming to the compensation the complainant had undergone 4 surgeries as evidenced by the records produced by the complainants side under Ex.A1 to A6 and certificates issued by those Doctors she was not in a position to evacuate her faeces in a natural manner but a colostomy has been done and a bag has been attached in which her faeces are drained and collected. Thus, the complainant had to carry the bag with her always tied around her midriff which would definitely cause a great mental and physical agony and hardship to the woman. Even after the 4 surgeries she had undergone continuous treatment to set right the complications. Thus, this would have caused a great mental agony and hardship besides making as an object of ridicule and repulsion and since the patient now died pending enquiry of the -16- complaint during the year 2011 granting any amount of compensation will not be adequate. The patient had undergone corrective surgeries. The patient had been suffering all along from the day of her first surgery in opposite party Hospital on 11.9.2006 to till 2010. She says she had to engage a maid servant to attend her and attend to the cleaning of the bags which has to be replaced every 15 days. According to her the bag costs about Rs.1000/-. Therefore as deposed by Dr.Elango, she had to carry the bag which would become part of her body until she breathes her last. Therefore, there was recurring expenses that has to be taken care of. According to her, her husband has retired as the Secretary in some local bank. It is not the case of the opposite party or the case of the complainants that the patient was well-to-do and in an affluent position. Therefore, in such circumstances, we feel that awarding a compensation of Rs.7,00,000/- will be adequate and justifiable in the circumstances of the case.
In the result, the complaint is allowed with cost of Rs.10,000/- directing the opposite party to pay a compensation of Rs.7,00,000/- to the complainants. The opposite party shall comply the order within two months from the date of this order.
A.K.ANNAMALAI R.REGUPATHI (J) MEMBER PRESIDENT -17- LIST OF DOCUMENTS FILED BY THE COMPLAINANT :
Sl.No. Date Description Ex.A1 29.12.2010 Copy of the Discharge Summary of Venkataeswara Hospital, Chennai Ex.A2 29.12.2010 Original Venkateswara Hospital, Chennai Bills Ex.A3 04.02.2011 Copy of Review Certificate of Dr.Chandra Mohan Ex.A4 Copy of Appollo Hospital, Madurai Discharge Summary Ex.A5 31.03.2011 Original Appollo Hospital, Madurai Bills Ex.A6 Copy of Medical Literature Book LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY:
Sl.No. Date Description Ex.B1 Written Arguments filed by the opposite party Ex.B2 Copy of Technical Support Material Ex.B3 Copy of the Case Laws Ex.B4 8.4.2004 True copy of Chief Cross-examination of complainant Ex.B5 8.4.2004 Translated copy of Chief Cross-examination of complainant Ex.B6 15.09.2004 Copy of Expert evidence of complaint Ex.B7 25.10.2004 Copy of Expert evidence of opposite party Ex.B8 Copy of Deposition of complainants husband Ex.B9 Copy of Deposition of Dr.Ramakrishnan -18- Ex.B10 Copy of photo filed by the complainant Ex.B11 22.06.2004 Copy of Reports and Tests, Medical Certificates and Communication of the complainant Ex.B12 Copy of Certificates of Doctor who treated the complainant Ex.B13 Copy of Reports and Test on the complainant Ex.B14 Copy of the Communication between complainant and opposite party Ex.B15 Copy of Bills, Summary, Certificate filed by the complainant Ex.B16 Typed set of original case sheet relating to the complainant Ex.B17 Copy of Case sheet Ex.B18 Copy of Nurses bedside report Ex.B19 Copy of Fluid Balance Chart Ex.B20 Copy of Report Chart Ex.B21 Copy of Diabetic Chart Ex.B22 Copy of Anaesthetic Record Ex.B23 Photo Copy of original case sheet relating to complainant Ex.B24 Copy of case sheet Ex.B25 Copy of Nurses bedside report Ex.B26 Copy of Fluid Balance Chart Ex.B27 Copy of Report Chart Ex.B28 Copy of Anaesthetic Record Ex.B29 Copy of Temperature Chart Ex.B30 Copy of Office form Ex.B31 -19- Copy of Investigation Ex.B32 Copy of Treatment given by other Hospitals Ex.B33 Copy of Certificate issued by other doctors Ex.B34
13.05.2005 Copy of Impugned Judgment and order passed by the Honble SCDRC, Chennai in O.P.No.248/1998 Ex.B35 31.12.1997 Copy of Letter written by the complainant to the opposite party seeking compensation Ex.B36 02.02.1998 Copy of Reply filed by the opposite party denying the allegation Ex.B37 12.05.1998 Copy of Notice issued on behalf of the complainant seeking compensation Ex.B38 09.06.1998 Copy of Reply issued on behalf of the opposite party to the notice dated 12.05.1998 Ex.B39 Copy of complaint filed by the complainant bearing OP.No.248/1998 Ex.B40 Copy of version filed by the opposite party Ex.B41 Copy of Proof affidavits filed by the complainant side Ex.B42 Copy of Proof affidavit filed by the opposite party A.K.ANNAMALAI R.REGUPATHI (J) MEMBER PRESIDENT INDEX ; YES / NO VL/PJM/D;/ORDERS