State Consumer Disputes Redressal Commission
Smt. Wendy Hughes, vs Dr. Pradip R. Pai, on 19 February, 2010
THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI-GOA Present: Smt. Sandra Vaz e CorreiaPresiding Member Smt. Caroline Collasso, Member Complaint No.13/2007 Smt. Wendy Hughes, Resident of House No.A/4, Carvalho Park, Acsona, Benaulim, Salcete Goa. 403716. Complainant v/s Dr. Pradip R. Pai, Dr. Pai Hospital, Rajshree Towers, 1st Floor, Next to Pratap Cinema, Kolbad, Thane (W) Pin Code 400 601. Opposite Party None for the Complainant For the Opposite Parties Shri A. Palkar, Advocate Dated:19-02-2010 ORDER
[Per Smt Sandra Vaz e Correia, Presiding Member]
1. The complainant is before us alleging negligence in the treatment of the opposite party - surgeon. She claims Rs. 25,00,000/- as compensation inclusive of the amount of Rs. 2,35,055/- paid by her to the opposite party. The opposite party is a plastic surgeon.
Case of the complainant.
2. Brief facts as culled out from the complaint are that the complainant was introduced to the opposite party who represented to her that he undertook all types of procedures for removal of excess fat from the eye lid and below the eyes and also discussed removal of fat from the top of the arm. The opposite party suggested that the complainant visit his hospital at Thane during the first week of December for the surgery. The follow up treatment after surgery would be done at Goa. The complainant flew to Mumbai on 05-12-2005 and was taken to the opposite parties hospital at Thane by car. The procedure was undertaken on the following day without general anesthesia. The complainant then realized that the fat around the right eye was not completely removed and till today the eye lid of the left eye does not completely open up like the right eye. The complainant also realized that the opposite party had removed the fat around the cheeks without any instructions from her.
3. Thereafter, the opposite party suggested that the complainant goes for a liposuction and tummy tuck to remove the fat around the waist. The complainant was encouraged to do so by the opposite parties wife, a dentist. The complainant agreed and the procedure was carried out on 08-12-2005. The complainant was discharged from the hospital on 11-12-2007. Prior to discharge, the complainant was given an abdominal belt and arm bands. After discharge, the complainant could not walk without support and was wheel chaired to the plane leaving from Mumbai to Goa and again had to be wheel chaired on arrival.
4. The complainant met the opposite party for follow up treatment at Goa and was given pain killers for relief. She was also told that in the absence of the opposite party, the complainant would be looked after locally by Dr. Ramakrishna Naik. According to the complainant, the stitches/staples in her abdomen became infected at which time she called Dr. Ramakrishna who, having no alternative went to a local hardware store at Margao and purchased electrical pliers and removed the staples on 23-12-2005. On the following day, the opposite party called on the complainant and removed the remaining stitches were the tummy tuck was carried out and informed the complainant that the wound was infected and that she required another procedure which he did a couple of days latter. The complainant was assured that everything would be fine by the first week of January and the complainant was discharged within an hour of the said procedure. The complainant was instructed to see Dr. Kamat for the dressing of the wound, but on the first such visit she was informed that the stitching had to be redone.
5. The tummy tuck was a total mess and blood was oozing out every now and than. The complainant had a gaping hole where the complainant was operated upon which was filled up by gauzes after using Betadine. It was only towards the end of March/beginning of April 2006 that the complainant saw the opposite party and the latter removed some of the stitches and advised the nurse employed by the complainant to leave open. Finally the opposite party informed the complainant that it was sheer bad luck that the procedure that was conducted by the opposite party on the complainant was not successful. The opposite party then demanded a sum of Rs. 30,000/- which was refused by the complainant as instead of seeing any improvement in her condition she could only see her condition worsen. The complainant panicked as there was a possibility that she would develop gangrene and even loose her life. The procedure carried out by the opposite party on the hips of the complainant where fat was removed was without the consent of the complainant. Instead of rectifying the mess in the procedure undertaken on the complainant, the opposite party prescribed anti-depressants and advised yoga. Instead of rectifying the procedure on the complainants face, she was advised to go for an acid fruit peel for the face. She was also advised to use a cream which on being used burnt her face.
6. Sometime in May 2006, the complainant had enough and demanded that the opposite party not only rectified the damage that had been done but also to refund the amount of Rs. 2,35,055/- paid by her for the surgery and the money spent on the medication etc. The complainant also demanded an amount of Rs. 18,64,945/- towards compensation for pain, suffering, mental agony etc.
7. The complainant then approached another plastic surgeon Dr. R. P. Usgaoncar who informed her that the surgery conducted on her was a total failure and that nothing could be done.
Case of the opposite party.
8. Per contra, the complaint was contested by the opposite party who entered his written version. Preliminary objections on point of jurisdiction and limitation were raised. In brief it is the case of the opposite party that he completed MBBS course at Goa Medical College in 1976 and also successfully completed General Surgery (M.S.) in 1980. He obtained M.ch. degree in Plastic Surgery in Mumbai in 1983 and has been in private practice of Plastic, Reconstructive and Cosmetic Surgery since 1985. He received advance training in Cosmetic Surgery in Singapore and Moscow. He is a life member of several medical associations in India. The complainant consulted him as she desired to undergo correction of bags in both upper eye lids and lower lids. The complainant also wanted to reduce the girth of her arms. She also had sagging of her face as a result of aging, and also wanted correction of breast sagging by surgical upliftment. The complainant was explained in detail about the risk of every operation and the possible out come, and was advised to undergo certain tests to assess her fitness for major surgery. The opposite party also explained his fees to the complainant to which she readily agreed.
9. The surgical procedure was undertaken on 06-12-2005 under twilight anesthesia and certain procedures spelt at para 25 of the written version were undertaken on the complainant with her consent. The procedure lasted about three hours. The complainant was very much satisfied with the procedure and expressed her amazement about so much comfort that she expressed her desire to finish all remaining operations i.e. liposuction of stomach on the next day itself. Accordingly, the operation was undertaken a couple of days latter after obtaining written consent and the patient being made aware of the nature of surgery, results, the complication and the post operative course. The complainant had a smooth recovery. As regards discharge from a huge blood blister which was there where the tummy tuck was carried out, the opposite party explained that during the tumescent liposuction procedure, upto four to six litres of saline solution mixed with certain drugs is injected into the fat to be aspirated out. By this the fat becomes soft and blood supply is reduced hence less bleeding. This fat which becomes soft can be easily broken down by various methods and then aspirated by a powerful suction machine. All the broken down fat and the remaining solution which escapes aspiration is allowed to flow out through 3 to 4 mm punctures which are left unstitched. This flow can sometimes be quiet dramatic as suddenly a gush of this solution may flow out from a puncture over a period of one to two weeks post surgery. The blister referred by the complainant was merely one such collection of fluid which was normal after such procedure.
10. As regards the infected skin staplers, the opposite party was not informed and came to know about it only when he visited the complainant at her house at Varca. Upon examination, the opposite party found that the 2 wound had not healed and showed mild infection on account of poor hygiene. The opposite party prescribed oral antibiotics and advised the complainant to come to Kamat Nursing Home where the procedure was performed which lasted about half an hour. The complainant was advised rest and to get dressing done at Kamat Nursing Home on alternate days. The complainant expressed her inability to visit Margao every alternate day as she lived about 15 kms away; hence she was advised to get it done by a private nurse living in the complainants neighbourhood. Yoga and anti depressant tablets were prescribed since the complainant had discussed some personal family problems with him.
11. The complainants allegation that fat was removed from some parts without her consent was denied. It was explained that before administration of anesthesia, the areas to be liposucked are always marked out on the patient in standing position in water proof ink. This was done on the complainant and the procedure was undertaken only after confirmation by the complainant. The consent form for the surgical procedure signed by the complainant was produced. The opposite party produced case papers, medical literature and testimonies of other patients.
12. Parties filed their affidavit in evidence and reiterated the stand taken in their pleadings. At the time of final hearing, counsel for the parties filed synopsis of arguments. We perused the pleadings and the evidence on record in detail and gave our due consideration to the submissions advanced by Ld. Counsel.
Findings.
13. At the outset, it is well settled that a medical doctor can be held liable only where his conduct falls below that of the standard of a reasonably competent practitioner in the field. There is a heavy burden on the complainant to prove his case of negligence beyond reasonable doubt. In the case before us, other then bare pleadings, the complainant has not brought anything on record that would suggest any negligence on the part of the opposite parties. It appears that the complainant was not satisfied with the result of the surgical procedures undertaken by the opposite party. However, it was incumbent on her to place material before us that would indicate the normal standard in plastic surgery for such procedures and how the opposite party had failed to meet the requirements. The complainant alleged negligence on the part of the opposite party for the blood blisters on her abdomen that oozed time and again. On his part, the opposite party has explained the cause for the so-called blisters which we have reproduced in the earlier part of this order. The complainants next grievance is regarding the unhealed surgical wound in her abdomen. The opposite party has admitted the existence of this wound and has explained that it was caused due to lack of hygiene of the complainant. It is also on record that the opposite party advised dressing of the wound every alternate day. The complainant has been unable to show that this unhealed wound was a result of the negligence of the opposite party. To blame the surgeon for such an unhealed wound in these circumstances would be rather far fetched.
14. The complainant referred to a couple of doctors who attended on her namely Dr. Ramakrishna and Dr. R. P. Usgaoncar. Dr. Ramakrishna is alleged to have attended to the infected skin staples placed by the opposite party. He would have been a proper witness to testify if the complainants said condition was a consequence of the negligence of the opposite party and lack of post-operative care. However, the complainant did not to examine this doctor. Likewise, the Dr. R. P. Usgaoncar is alleged to have told the complainant that the surgery conducted on her by the opposite party was a total failure and that nothing could be done any further. Dr. R. P. Usgaoncar, apparently a Goa-based plastic surgeon, would have been a proper witness to testify regarding any negligence or incompetence on the part of the opposite party; however the complainant did not examine this medical expert either.
15. The opposite party, on his part, has dealt with each and every averment made in the complaint and there is not a whisper of any negligence on his part. The opposite party has also produced relevant medical literature that throws light on the standard medical practice in the conduct of the surgical operations done on the complainant; we have perused the said medical literature and did not find any deviation therefrom by the opposite party. The complainant is aggrieved by the unhealed surgical wound in her abdominal area.
16. As stated earlier, courts have to be circumspect when dealing with cases of medical negligence and there is a rather heavy burden of proof cast on the consumer to bring home his case. Except for bare pleadings, we did not find any material that even vaguely suggests any negligence on the part of the opposite party. We did not find any substance in the complaint.
Order.
17. Accordingly, the complaint stands dismissed. In the circumstances, the parties are left to bear their own costs.
Pronounced.
[Sandra Vaz e Correia] Member [Caroline Collasso] Member