State Consumer Disputes Redressal Commission
Rizwana Shaikh, vs Dr. Loveleena Nadir on 5 August, 2008
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986 ) Date of Decision: 05-08-2008 Complaint No.C-270/2001 Mrs. Rizwana Shaikh, -Complainant W/o Mr. Shaikh Mohd. Ibrahim, Through R/o B-1/201 Taj Enclave, Mr. Muntazir Mahdi, Geeta Colony, Advocate. Delhi-110031. Versus 1. Dr. Loveleena Nadir, -Opposite Party No.1 B-13, Pamposh Medicare Centre, Through Pamposh Enclave, Mr. M.R. Mahapatra, New Delhi-110048. Advocate. 2. Dr. Sanjay Chaurey -Opposite Party No.2 B-13, Pamposh Medicare Centre, Through Pamposh Enclave, Mr. M.R. Mahapatra, New Delhi-110048. Advocate. CORAM: Mr. Justice J.D.Kapoor President Ms Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT On account of alleged gross and sheer negligence as well as professional misconduct apart from breach of trust on the part of the OP, the complainant has, through this complaint, sought the following reliefs :-
(a) Direct the OPs to pay a sum of Rs. 15,00,000/- towards the compensation to the complainant along with interest @ 24% .
(b) Direct the OPs also to pay a sum of Rs. 25,000/- to the complainant towards the cost of litigation.
2. Allegations of the complainant, who is 42 years of age and a mother of three children i.e. two sons and a daughter aged around 20, 19 and 12 years respectively, in brief, are that in the month of August/September 1999, she had pain in her abdomen and had a complete ultrasound of the whole abdomen on 01-09-1999. As per the report of the ultrasound, both her kidneys were absolutely normal in size, shape, position and echotexture and the conclusion of the report was large cystic, septated abdominopelvic mass-? ovarian.
3. That on 04-09-1999, the complainant consulted the OP No.1 at Shyamlal Nursing Home, Daryaganj, New Delhi and she also confirmed that it is a case of ovarian cyst and advised the complainant for operation. The urine culture analysis was also done at the advice of the OP No.1 which was also normal and pus cells were 0-2/HPF only. She again consulted the OP No.1 on 08-09-1999 and the OP No.1 again advised the complainant for operation by the method of laparoscopy/laparotomy under GA on 10-09-1999 at 8 a.m. as the diagnosis was ovarian cyst. On 1909-1999 laparoscopic operation was done by the OPs at Shyamlal Nursing Home, Daryaganj. OPs started the operation at around 8.30 a.m. and continued it upto 3 p.m. i.e. almost for 7 hours which got the complainants family members apprehended who were waiting outside the operation theatre anxiously. It is pertinent to mention here that this type of operation generally takes two to three hours to complete. After the operation which was stated by the OPs to the complainants family to be successful, the complainant was shifted to the I.C.U. and it was observed at that stage by complainants family that a catheter and one drain pipe in left side of the abdomen to the patient were attached. This fact coupled with the time taken by the OPs to complete the operation made the complainants family assured that some thing wrong has been done to the patient. The complainant was in a very bad shape and her condition was deteriorating and due to this blood transfusion was done by the OPs on 11-09-1999.
4. That on `1-09-`999, the OPs removed the catheter and advised the complainant to take liquid/juice. In the after noon it was noticed by the complainants family that the liquid was oozing out from drainage pipe abdomen hole and the complainant was in great pain and remained so the whole night. On 13-09-1999, both the OPs examined the complainant and immediately fixed the catheter once again. The complainants family members kept asking the OPs reasons for not improving the condition of the patient and for the above mentioned problem but the OPs did not pay any heed to their queries and without the knowledge and permission of the complainant and her family members, very secretly got the complainant checked up by a urologist as suspicion of urinary bladder leakage was there. After the check up both the OPs insisted and compelled the complainants family members to shift the complainant to their Pamposh Medicare Centre for IVP and further management and the complainant was shifted to the Pamposh Medicare Centre on 14-09-1999.
5. That concentration was given by the OPs and Dr. G.K. Datar only on urinary bladder at the time of IVP and cystogram. Whereas actual leakage was due to urinary tract/left side ureter damage which was ignored by both the OPs. Laparoscopic operation of ovarian cyst was mainly in left side and damage to left ureter indicates that the operation was performed wrongly and negligently by the OPs.
6. That on 30-01-2001 the complainant consulted another Doctor namely Dr. Rupam Arora (Gynecologist) as the complainant was not satisfied by the treatment of the OPs and got her ultrasound done once again and to the shock and surprise of the complainant and her family members, the report expressed doubt about the left kidney. On 16-03-2001, the complainant consulted Dr. S.N. Rizvi (Nephrologist) for kidney and on his advice got IVP (Radiological Examination of the urinary tract) at Diwanchand Satyapal Aggarwal X-ray clinic. As per the report of the IVP, there was no contrast seen in the left kidney after 24 hours and the right kidney and ureter was normal.
7. That Dr. Rizvi advised the complainant to consult a Urologist in AIIMS and on 29-03-2001 the complainant consulted Dr. Dogra at AIIMS who got completed DTPA renal Scan with GFR evaluation for kidney which shows right kidney as normal in function and size whereas left kidney was poorly perfused, hydronephrotic, obstructed with extremely poor function and the renal function of the left kidney was only 4%. The ultrasound was also done which shows left kidney in shrink position with lesser size as compared to the right kidney. It was further revealed that the left side ureter is dilated and there is possibility of a stricture at the lower end.
8. That in view of the above stated facts, circumstances and in the light of various tests and examinations got conducted by the complainant from various medical experts, it became crystal clear and established that the OPs at the time of laparoscopic surgery conducted by them on 10-09-1999 have damaged the ureter/urinary tract in left side which is a case of gross and sheer negligence as well as professional misconduct apart from breach of trust on the part of the OPs. It is further clear and established that the urinary leakage was due to the damage in the urinary tract and this damage in the urinary tract slowly affected the functioning of the left kidney/ureter which ultimately became non-functional. This negligent act of the OPs has caused the complainant permanently physically weak and handicapped in many ways thus reduced the life expectancy of the complainant who is a mother of three young children. To recover completely, which is not guaranteed, she needs to have kidney transplant.
9. At the outset the OP has denied the allegations of negligence in conducting the operation for removal of cyst and has averred that it was after more than a year of the operation that the tests showed that complainants left kidney was not functioning properly. Ultrasound done at P.D. Gupta Mediscan Centre by the patient shows stone (calculi) in inferior calyx of left kidney. This development has nothing to do with the operation carried out by the OPs. It is quite possible that the patient ignored and neglected the stone in the kidney, which aggravated and caused pain to her.
10. All tests indicate that the left side kidney is not functioning and left side ureter is dilated. It is wrong and hence denied that it was a consequence of the operation.
After the operation, all tests carried out on the basis of suspicion, proved normal. On the other hand, one ultrasound examination done in 2001, showed stones in left kidney which may have been neglected by the complainant, which caused her pain and predicament.
11. The OPs are not guilty of any act of negligence.
Kidney transplant is done only when both kidneys are irretrievably damaged. It is absolutely possible to live a full life with only one functioning kidney. In any case it has nothing to do with the operation carried out by the OPs.
12. So far as other allegations of removal of catheter from the urinary bladder the OP has come up with the following averments:-
(i) That the complainant was alive to and aware of the risk involved in the operation and she would not hold the doctors guilty in case the operation was not successful. However, in the present case the operation was successful.
(ii) That the investigation showed a large cystic swelling (fluid filled) of the ovary. The OPs after examination recommended surgical removal of the ovarian swelling by laparoscopic surgery. Laparoscopic surgery is an established technique in which patients recovery is faster and pain is much less. Surgery was undertaken after informing the complainant and her attendant and getting their consent. Thereafter the cystic swelling was successfully taken out. After lengthy operation, the patients are shifted to Intensive Care Unit for observation. A Catheter in the bladder is routinely introduced in all operation in the pelvic region and so was the case with the complainant. A drainage tube was left in place in the abdominal cavity of the patient so that it could drain any collection of fluid/blood near the site of the operation.
(iii) That the start of the operation is not the time that the patient is shelled into Operation Theatre. Preparation and anesthesia takes time, thus it is wrong to presume that the operation took seven hours. It is also wrong to mention that this type of operation takes two to three hours. The length of the operation depends on the actual finding at the operation site.
After lengthy operation, the patients are shifted to Intensive Care Unit for observation and not because they are in a critical condition. A Catheter in the bladder is routinely introduced in all operation in the pelvic region and so was the case with the complainant. A drainage tube was left in place in the abdominal cavity of the patient so that it could drain any collection of fluid/blood near the site of the operation. Obviously, some oozing was expected and that is why a drainage tube was left in place.
No queries were avoided and it is regular practice of the OPs to brief the persons attending the patients about the operation which was done in the present case.
(iv) That for removal of catheter and allowing juice/liquids to be taken by month is an indication of recovery of the patient as per expectations. Patient was shifted out from ICU, too since she had recovered satisfactorily. Though no mention is make of that liquid was oozing from the drainage pipe as expected. Pain after this kind of operation for a few days is also normal and expected.
(v) That on 13-09-1999 the nature and smell of the liquid oozing from the drainage tube made OPs suspicious that may be dealing with a urinary leak and therefore the catheter was reintroduced to drain the bladder efficiently. This development was neither abnormal nor due to any negligence on the part of the OPs.
The complainants relatives were informed about the development and also about the proposal to seek the opinion of a Urologist. There was nothing secretive about it as the relatives of the complainant were informed and the name and designation of the Urologist Dr. C.M. Goel was disclosed to them. Had there been anything secretive, a mention of suspected urinary leak in the case-sheet and discharge summary would not have been made and an announced official opinion would not have been sought from a qualified, renowned Urologist. All these steps were taken in the best interest of the complainant. Complainant was shifted to Pamposh Medicare Centre because it was thought better care could be taken of the patient at the centre as also proximity to a very renowned and qualified X-ray clinic.
(vi) That Cystogram was done to recheck for any urinary leak and was again found normal. Since the Cystogram was found normal, catheter was removed from the urinary bladder. It may also be mentioned here that after operation of this magnitude pain for few days in normal which subsides with time and medication.
(vii) That IVP is meant to delineate the entire urinary tract, which was shown to be normal. Cystogram is meant to delineate the bladder. Left sided ureter damage would have shown up as a leak on the IVP, which it did not. It is wrong and hence denied that operation was performed wrongly by the OPs.
(viii) That the complainant did not seek any medical advice from the OPs in the whole year of 2000. If for one year after the operation the complainant did not require any medical advice it can be safely presumed that the operation was successful.
13. In support of her claim, the complainant has produced and proved the following documents:-
(i) Copy of report of ultra sound dated 01-09-1999.
(ii) Copy of prescription dated 04-09-1999 given by the OP NO.1 giving details of the check-up of the complainant.
(iii) Copy of the report dated 06-09-1999 of urine culture.
(iv) Prescription dated 08-09-1999 written by the OP No.1 advising and fixing the date of operation.
(v) Copy of the Discharge file dated 14-09-1999,
(vi) Copy of report dated 15-09-1999 of IVP test.
(vii) Copy of prescription dated 22-09-1999 given by the OP No.1.
(viii) Copy of the report of cystogram dated 02-10-1999.
(ix) Copy of prescription dated 02-10-1999.
(x) Copy of the bill raised by the OPs and paid by the complainant.
(xi) Copy of prescription dated 11-10-1999.
(xii) Copy of report dated 31-01-2001.
(xiii) Copies of reports/prescriptions of Dr. Rizvi.
(xiv) Copy of report of IVP test dated 23-03-2001.
(xv) Copy of report dated 28-03-2001 by AIIMS.
(xvi) Copy of DTPA renal scan report dated 29-03-2001 and ultrasound.
(xvii) Copy of ultrasound report dated 21-05-2001.
(xviii) Copy of demand notice dated 14-08-2001.
(xix) Copies of postal receipts.
14. The complainant is also presuming the negligence on the premise of following queries:-
(a) After such minor laparoscopic surgery of ovarian cyst where was the need to shift the patient in ICU?
(b) Where was the need for blood transfusion, if the condition of patient was good and laparoscopic operation was successful?
(c ) Why drainage tube was kept in abdomen for 21 days?
This clearly shows that something went wrong while performing surgery due to the gross and sheer negligence/professional misconduct of OPs.
15. While interlinking the damage to the left side ureter with the kidney the complainant has come up with the following version:-
Due to damage to left side ureter, kidney was getting damaged slowly and when she consulted Dr. Roopam Arora (Gynaecologist) and Dr. P.D. Gupta, she came to know about damage to left side kidney. After consulting Dr. S.N. Rizvi (Nephrologist), detail check-ups/investigation at Diwanchand Satyapal Aggarwal X-Ray Clinic ( a fully equipped clinic with modern machines), she came to know the following facts:-
(a) Left side kidney size reduced and not functioning.
(b) Left side ureter was dilated and there was a possibility of stricture at the lower end.
(c ) There were no stones in kidneys.
(d) Right side kidney and ureter were normal.
16. On the concept of medical negligence we have culled out certain criteria from the ratio of large number of judgments starting from Bolams case followed by various judgments of the Supreme Court, some of which are as under :-
(a) Bolams case reported in (1957) 2 AII ER 118, 121 D-F
(b) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(c) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(d) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
(e) Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651
(f) Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369
17. The conclusions are as under :-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment?
If so what was the level of error?
Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
18. As is apparent from the aforesaid conspectus of facts, the allegations of medical negligence on the part of the OPs the solitary point to be determined is whether there was any kind of possibility of damage to the ureter while performing the laparoscopic surgery of ovarian cyst and whether leakage was due to some damage done to the ureter or was due to the non-detection of the stone i.e. calculus for a year or so which aggravated and caused pain to the complainant.
19. The defence of the OP that the damage to the left ureter as well as left kidney got damaged due to non-detection of stones i.e. calculus for a year or so is not tenable as the documents on record show that there was no stone/calculi in the left ureter/kidney of the complainant just prior to the performance of laparoscopic operation for removal of the ovarian cyst.
In this regard report of Dr. Sucharita Jains ultra sound dated 01-09-1999 is to the effect that both kidneys are normal in size, shape, position and echotexture and no calculus hydronephrosis or SOL seen.
Furthermore, the diagram of the urinary tract placed on record by the complainant as well as OP points to the possibility that while removing the ovarian cyst by laparoscopic procedure the left ureter was cut/damaged at the lower end and since a stitch was put there to close the cut, the same did not allow urine to pass out and started putting back pressure on the kidney which resulted in damage to the left ureter as well as kidney.
20. Furthermore, ultrasound carried out at Diwan Chand Satya Pal Aggarwal X-ray Clinic on 29-03-2001 (Ex. CW1/18) states as under:-
Lower Abdominal Ultrasound (Hystrectomy with lestosphectomy) The right kidney measures 107 mm in length with a parenchymal thickness of 16 mm. No hydronephrosis / No calculus.
The left kidney measures 93 mm in length with a parenchymal thickness of 10 mm. There is marked dialation of the pelviacalyceal system and the dilated ureter is seen to have a tortuous course initially. Lower down it can be traced till the mid pelvis. No calculus can be identified. Possibility of a stricture at the lower end may be considered.
The urinary bladder is distended and is normal in appearance. No calculus is seen.
Right ovary is normal in size and appearance. Suggest clinical correction & further workings with CT/RGP.
21. Thus it is apparent that even till 29-03-2001 there was no stone or calculus seen in the left kidney.
Another ultrasound report of the urinary tract dated 21-05-001 by Diwan Chand Satya Pal Aggarwal Imaging Research Centre (Ex. CW1/19) shows that the left ureter is dilated in its entire course, no obvious ureteric calculus can be seen. It is only for the first time in the scan conducted by P.D. Gupta Mediscan Centre (P) Ltd. dated 31-01-2001 the existence of calculi was seen in the left kidney.
22. Besides the above evidence, the fact that laparoscopic operation of the ovarian cyst took about seven hours instead of normal 2-3 hours and the OPs have not been able to give any satisfactory explanation for the said delay in conducting operation and has given a casual and generalized reply which further raises the inference that something had gone wrong during the said surgery. Further the fact that when the complainant was brought after the surgery there was a catheter which was kept on for 22 days, drain pipe for 12 days and a Urologist had to be brought in to check on the patient as there was suspicion of urinary bladder leakage also supports the theory projected by the complainant. It was explained by the patient that due to stricture at lower end of the left ureter urine or fluid was not passing into urinary bladder and there was no way out for urine and hence it was putting pressure on the kidney.
23. The averment of the OP that it was after more than a year that the complainant had complained of the kidney damage and as such the same could not have any connection with the laparoscopic surgery carried out by the OPs also does not find favour with us as during the entire course various doctors were being consulted from time to time and it was only at a much later stage it was discovered that the ureter and the kidney had got damaged. Even otherwise the ultrasound report immediately before the laparoscopic operation on the complainant both the kidneys were found to be normal and no stone or calculi was seen. It could only be during the surgery that an nick/cut was caused in the lower end of the left ureter which is in close proximity to the ovary and ovarian cyst and the likelihood of the ureter having been damaged cannot be ruled out.
24. Thus, because of non-passing of urine to the bladder would have damaged the ureter as well as the kidney gradually. The OP has in no way proved that the existence of stone/calculi at a later stage could have caused such a damage to the ureter and kidney that as per report of Diwan Chand Satya Pal Aggarwal X-Ray Clinic dated 2nd March 2002 the left kidney could be barely visualized through the study and renal cortical function had worsened since the last scan.
25. Thus, in our view, OPs are guilty for negligence and deficiency in service in conducting the laparoscopic surgery/operation for removal of ovarian cyst on the complainant and causing immense physical pain and agony and unnecessary future medical expenses.
26. In our view, lumpsum compensation of Rs. 50,000/- besides Rs. 10,000/- as cost of litigation shall met the ends of justice.
27. Payment shall be made within one month from the date of receipt of this order.
28. Complaint is allowed and disposed of in foresaid terms.
29. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
30. Announced on the 5th August 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj