State Consumer Disputes Redressal Commission
United India Insurancecompany Ltd vs Lathika on 27 February, 2015
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NOS. 640/13 & 14/14 COMMON JUDGMENT DATED : 27.02.2015 (Appeal filed against the order in CC.No.122/2010 on the file of CDRF, Kottayam order dated : 12.09.2013) PRESENT SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SRI.V.V.JOSE : MEMBER APPEAL NO.640/13 APPELLANTS
1. Matha Hospital, Rep.by its Managing Director, Mr.Sabu Sebastin, Matha Hospital, Thellakom, Kottayam
2. Mr.Sabu Sebastin, Managing Director, Matha Hospital, Thellakom, Kottayam
3. Dr.Jaipal Johnson, Matha Hospital, Thellakom, Kottayam
4. Thommy Kunjan, Director, Matha Hospital, Thellakom, Kottayam
5. Dr.Jacob K.Danial, Director, Matha Hospital, Thellakom , Kottayam (By Adv.Sri.M.C.Suresh) Vs RESPONDENTS
1. Lathika W/o.Venugopan, Konathusseril House.P.O Varanad, Cherthala, Alappuzha Pin - 688 539
2. United India Insurance Co.Ltd, Divisional Office, Geetha Trade Centre, P.B.No.210, Nagampadom, Kottayam - 686001 (R1 by Adv.Sri.P.G.Suresh) (R2 by Adv.Sri.R.Jagadish kumar) APPEAL NO.14/2014 APPELLANT
1. United India Insurance Co.Ltd, Divisional Office, Geetha Trade Centre, P.B.No.210, Nagampadom, Kottayam - 686001 Appellant is represented by T.Resmi, Assistant Manager, United India Insurance Co.Ltd, Divisional Office - 1, Thiruvananthapuram (By Adv.Sri.R.Jagadish kumar) VS RESPONDENTS
1. Lathika W/o.Venugopan, Konathusseril House.P.O Varanad, Cherthala, Alappuzha Pin - 688 539
2. Matha Hospital, Rep.by its Managing Director, Mr.Sabu Sebastin, Matha Hospital, Thellakom, Kottayam
3. Mr.Sabu Sebastin, Managing Director, Matha Hospital, Thellakom, Kottayam
4. Dr.Jaipal Johnson, Matha Hospital, Thellakom, Kottayam
5. Thommy Kunjan, Director, Matha Hospital, Thellakom, Kottayam
6. Dr.Jacob K.Danial, Director, Matha Hospital, Thellakom , Kottayam (R1 by Adv.Sri.P.G.Suresh) (R2 to R6 by Adv.Sri.M.C.Suresh) COMMON JUDGMENT SRI.K.CHANDRADAS NADAR :JUDICIAL MEMBER These appeals are filed respectively by OP Nos. 1 to 5 and OP.No.6 in CC.No.122/2010 in the CDRF, Kottayam. The complainant / respondent alleged in her complaint that she had continuous stomach pain and bleeding. Hence she approached the first opposite party hospital and consulted the third opposite party a doctor there. The third opposite party advised detailed check up and based on the check up diagnosed that the complainant was having multiple fibroid with endometriccyst of ovary and advised hysterectomy immediately. The third opposite party assured the complainant that the operation was not at all serious or complicated and can be done as key hole surgery. The third opposite party also told the complainant that he had very much expertise in that type of operation and it would be successful. The complainant was further told that maximum three days inpatient stay in the hospital was sufficient and after discharge from the hospital the patient need take physical rest only for a week. The third opposite party told the complainant that key hole surgery is painless and cost of operation would be approximately Rs.30,000/-. Believing the statements of third opposite party the complainant opted key hole surgery and got admitted in the first opposite party hospital on 14.07.2008 for hysterectomy. The third opposite party after fulfilling all the medical requirements conducted hysterectomy operation on 15.07.2008.
2. According to the complainant contrary to the assurance that the hysterectomy operation would take only one hour, the third opposite party actually took five hours to complete the operation and she suffered heavy pain and agony due to the surgery. After the surgery the complainant and her husband were told that the operation was fully successful and the complainant would be perfect within three days. On 04.08.2008 the complainant was discharged from the first opposite party hospital with advice to consult the third opposite party after two months. At that time the stent which was inserted during hysterectomy operation was removed. The complainant was advised to take rest for some more time. it is alleged in the complaint that after few months the health of the complainant deteriorated. There was abnormal increase in blood pressure and constant tendency for vomiting. When the complainant consulted Dr.Binasha a local doctor she suggested blood test. On showing the test results the doctor told the complainant that the functioning of the kidney was not satisfactory and advised the complainant to consult an urologist immediately. So the complainant consulted Dr.Babu Francis and Dr.Damodaran Nambiar in the Lissy Hospital, Ernakulam. After clinical examination and laboratory tests the complainant was suggested to take IVP x-ray on the part of the kidney area and they admitted the complainant in the Lissy Hospital on 27.04.2009 for the purpose. On further examination the doctors told the complainant that her left kidney was not functioning properly and she needed further better treatment and check up in a hospital having facility of nuclear medicine. Accordingly the complainant was referred to the AIMS Hospital at Edappally. The complainant was admitted in the AIMS Hospital on 06.05.2009 and on examination it was found that left kidney was not functioning properly. They suggested another operation to remove the damaged kidney. The complainant was told that the left kidney got damaged due to the negligent handling of hysterectomy surgery which was done by the third opposite party in a negligent manner. The complainant was found to have gross hydronephrotic left kidney. Evaluation was done and symptomatic medicines were given to the complainant to cure and recoup the functioning of the left kidney. In spite of expert treatment no improvement was seen in the function of the left kidney. So the left kidney was removed surgically by Dr.Appu Thomas HOD Urology Department of AIMS Hospital. The case of the complainant is that the only reason for the failure of the left kidney to function was the negligent surgery conducted by the third opposite party. The report dated 19.05.2009 would reveal this. The further allegation is that the complainant sustained serious and grave injury to her left kidney due to the negligent conduct of hysterectomy operation. As a result, the complainant sustained unpredictable loss in her life. The complainant also lost her future life happiness etc. She had to spend more than Rs.90,000/- for medical treatment in various hospitals. Actual amount spent for treatment due to the negligent act of the opposite party is nearly Rs.1,50,000/-. The first opposite party hospital is insured with the sixth opposite party. Hence all the opposite parties are bound to compensate the complainant for the negligence and deficiency in service committed by opposite party no.3. She claimed a compensation of Rs.16,50,000/- from the opposite parties.
3. Before the consumer forum opposite parties 1 to 5 filed joint version and the sixth opposite party remained exparte. Opposite parties 1 to 5 contended that the complainant was diagnosed to have multiple fibroid with endometricyst of ovary and the said disease required hysterectomy. She was admitted at the first opposite party hospital on 14.07.2008 and her surgery was posted on 15.07.2005. She was subjected to all pre operative investigations and assessment. She was found fit for surgery. The third opposite party had detailed discussion with the complainant and her relatives about USG findings and the procedure to be adopted to cure the disease condition of the patient. The third opposite party conducted lap assisted vaginal hysterectomy under general anaesthesia. Intra operatively presence of adhesions made the procedure difficult. The adhesion was mobilized in upper pedicles managed by laparoscopy. Following surgery cystoscopy was done as a routine procedure which revealed no urinary efflux on the left side. On stenting with aeoret catheter the ureter was found to be injured. Immediately, Dr.Albert retired Professor and Head of the Department of Urology, Medical college hospital, kottayam was called to attend the patient and the ureteric injury was repaired by suturing laparoscopically. Stent was kept indwelling. Peri ureteric drain was kept to check urinary leak and the patient was kept under close monitoring and observation. The by standers of the patient were duly informed about intra operative injury caused to ureter and its repair. On 24.07.2008 urinary leakage was less and ureteric catheter was removed. Later on observation it was found that urinary leakage through drain did not stop completely and hence it was decided to do retrograde stenting with double stent under C - arm control. After the stenting urine leakage stopped completely and the patient was discharged with advice for review for stent removal after two months. On 22.10.2008 stent was removed and the complainant was put on long term antibiotics. She was advised review after the course of medication for further evaluation. According to opposite parties 1 to 5 the complainant did not turn up for review as advised and lost further follow up. They had exercised due care and diligence during lap assisted vaginal hysterectomy. Injury to urinary tract is a medically accepted and known complication associated with pelvic surgery. The entire procedure and the risks inherent in the procedure were discussed with the complainant and she was informed about need for periodical assessment even after stent removal. Retroperitoneal fibrosis is a gradual fibrotic process leading to obstruction of the ureter and hydro nephrosis of the kidney. Since the complainant did not turn up for follow up after stent removal, the gradual changes leading to hydro nephrosis and hydro ureter could not be detected and treated in time. Had the complainant been regular in this follow up and periodical urological review after stent removal as advised, retro peritoneal fibrosis and enlargement of the ureter could have been detected and treated at the earliest and loss of kidney could have been avoided. The complainant and her by standers were informed about the risk involved in hysterectomy and voluntary consent was obtained before conducting the surgery. Lap assisted vaginal hysterectomy is a preferred surgical treatment. No injury was caused to the kidney of the complainant during hysterectomy. Ureteric injury was detected and repaired by the urologist during the surgery itself. The complainant remained medically unattended for about five months against the advice given to her on 22.10.2008. Hydro nephrosis of kidney is a gradual process which can be due to several causes and if the patient had periodical review as advised, effective management including ureteric reimplantation if necessary could have been adopted to avoid nephrectomy. The hospital is duly insured with the sixth opposite party under the professional indemnity scheme. Opposite parties 1 to 5 are not liable to compensate the complainant as there was no negligence or deficiency in service on their part.
4. The sixth opposite party was subsequently impleaded but they failed to file any version.
5. Before the consumer forum the complainant gave evidence as PW1. Her husband was examined as PW2. Two doctors were examined PWs 3 & 4. Exts. A1 to A17 were marked on the side of the complainant. The third opposite party gave evidence as DW1. Another witness was examined as DW2. Ext.B1 was marked on their side. Exts.X1, X2 & C1 were also marked in evidence. Finding that there was negligence and deficiency in service on the part of the third opposite party, the District Forum allowed the complaint and awarded compensation of Rs.10, 00,000/-. The sixth opposite party the insurer was directed to pay the amount. Cost of Rs.5000/- was also ordered to be paid. Opposite parties 1 to 5 are challenging the conclusions of the consumer forum in Appeal No.640/13 .Op6 has filed Appeal 14/14 on the ground that as per Ext.B1 policy, there was limit for their liability. It was overlooked by the consumer forum. The short question is whether the appellants are entitled to any relief.
6. Admittedly, the complainant approached the first opposite party hospital with complaints of continuous stomach pain and bleeding and consulted the third opposite party doctor working there. The complainant was diagnosed to have multiple fibroid with endometric cyst of overy. She was advised that the said condition required hysterectomy. Accordingly, the complainant was admitted in the first opposite party hospital on 14.07.2008. After preoperative investigations and assessment of the condition of the patient surgery was conducted by the third opposite party on 15.07.2008. The procedure adopted was lap assisted hysterectomy under general anaesthesia. It appears from the medical records produced that apart from the statement that the complainant was having multiple fibroid the number of fibroids its dimensions and such other details are not mentioned. But the complainant has no contention that the condition was not such that immediate management by laparoscopic surgery was not warranted. It is admitted in the version itself that on stenting with aeoret catheter the ureter was found to be injured. Ureteric injury was repaired by suturing laparoscopically with stent kept indwelling. The ureteric injury was informed to the bystanders of the patient. Later on 24.07.2008, ureteric catheter was removed but it was found that urinary leakage through drain did not stop completely. Hence retrograde stenting with double stent under carm control was done. After the said procedure leakage of urine completely stopped. Hence the patient was discharged with advice to approach the hospital for review of and for stent removal. On 22.10.2008 stent was removed. The contentions of opposite parties 1 to 5 are two fold. Firstly injury to ureter during hysterectomy is an accepted complication and secondly the patient failed to turn up for review as advised by the opposite parties and she lost further follow up. The complainant refutes this contention and according to the complainant apart from advising review after two months for stent removal, the complainant was never directed to approach the first opposite party hospital for further or periodic evaluation.
7. It appears from the medical records produced such as Ext.X2 and Ext.A9 that subsequently the left kidney of the complainant ureter of which was injured during hysterectomy became functionless and accordingly the left kidney was surgically removed at the Amrita Institute of Medical Sciences, Edappally. PW4 was the doctor who treated the complainant at the Amrita Institute of Medical Sciences, Edappally. The opposite parties have definite contention in this regard. According to them, the left kidney was lost due to the gradual process of retroperitoneal fibrosis leading to obstruction of the ureter and hydronephrosis of that kidney. The complainant did not turn up for follow up after stent removal and hence the gradual changes leading to hydronephrosis and hydro ureter could not be detected and treated intime. They contend that if the complainant was regular in follow up and periodical urological review after stent removal as advised by them, the condition of retro peritoneal fibrosis and enlargement of the ureter could have been detected and treated at the earliest and loss of kidney could have been avoided.
8. It can be seen from Ext.A2 the discharge summary issued from the first opposite party hospital that the left ureter was injured while introducing ureteric catheter and the injury was sutured. Ureteric drain was put. There was leakage of urine. Therefore retrograde stenting was done 30.07.2008. The patient was discharged with stent inside. Apart from prescribing medicines he was advised review after six weeks and stent removal after two months. It is not disputed that the patient went for review as well as stent removal. The question is whether despite advice to consult further the complainant has desisted from periodically reviewing her status with regard to renal function as contended. From neither Ext.A2 or from Ext.X1 medical records produced from the first opposite party hospital, it can be seen that the complainant was advised periodical follow up after stent removal. So the contention that the complainant refrained from periodical urological review after stent removal despite advice to that effect, is not supported by any record issued or produced from the first opposite party hospital. The result is though the ureteric injury can be justified as an accepted medical complication during hysterectomy, the fact remains that the patient was not properly advised as to the periodical follow up which led to the complications which according to the opposite parties themselves could have been avoided had there been proper follow up. The fact that retroperitoneal fibrosis developed in the left ureter which was injured shows that the injury was the direct reason for the disease. It is in the above background the consumer forum came to the conclusion that the hospital is purposefully hiding relevant facts and failed to properly monitor and manage the ureteric injury. This directly resulted in the loss of left kidney of the complainant. In short, there is no error in the conclusion of the consumer forum that opposite party no.3 committed negligence and deficiency in service. The first opposite party being the employer is equally liable to compensate the complainant. Regarding the quantum of compensation considering the facts that the complainant lost one of the kidneys for ever surgery for removal of left kidney and the course of treatment required and the consequent expenditure involved and other inconviences the amount awarded is on the reasonable side.
9. According to the appellant in Appeal 14/14 their liability to compensate the first opposite party hospital is limited to Rs.4.75 lakhs and the District Forum was not justified in saddling the entire liability on the sixth opposite party. The insurer is liable to compensate the first opposite party only up to the sum assured. They were directed to pay the entire compensation only because the insurer never raised such a contention before the consumer forum. The liability of an insurer is always limited to the sum assured subject to above clarification Appeal 14/14 can be disposed of. There is no merit in Appeal No.640/13.
In the result, Appeal No.640/2013 is dismissed and Appeal No.14/14 is disposed of with the clarification mentioned earlier. Opposite parties 1 & 3 are directed to pay the balance compensation with interest as directed by the consumer forum. Payments shall be effected within one month from the date of the receipt of copy of this order. Parties shall bear their respective costs in these appeals.
K.CHANDRADAS NADAR : JUDICIAL MEMBER V.V.VJOSE : MEMBER Be/ KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NOS.
640/13 & 14/14 COMMON JUDGMENT DATED : 27.02.2015 Be/