State Consumer Disputes Redressal Commission
1.Fernandez Hospital vs Smt. P. Haritha on 2 March, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
F.A.No.369/2019 against C.C.No.742/2012,
District Commission-II, Hyderabad.
Between :
1.Fernadez Hospital represented by its Managing Director.
2. Dr.S.Kasthuri, Gynaecologist
3. Dr.Shanthi, Gynaecologist
4. Dr.Srisha, Gynaecologist (All are C/o.Fernadez Hospital, Bogulkunta, Abids, Hyderabad. ...Appellants/ Opposite parties And Smt. P.Haritha, W/o.V.Ravikrishna, Aged about 28 years, R/o.3-7-338/1, Mansoorabad, L.B.Nagar, Hyderabad. ... Respondent/ Complainant Counsel for the Appellants : M/s.Rupendra Mahendra.
Counsel for the Respondent : M/s.Srinivasa Rao Pachwa.
CORAM : Hon'ble Sri V.V.Seshubabu, Member (J), Hon'ble Sri K.Ranga Rao, Member (J) And Hon'ble Smt.R.S.Rajeshree, Member (NJ).
THURSDAY, THE SECOND DAY OF MARCH, TWO THOUSAND TWENTY THREE .
Oral Order:(Per Hon'ble Sri V.V.Seshubabu, Member (J)) ****
01). The appeal is filed u/s.15 of the Consumer Protection Act against the order of the District Consumer Redressal Forum-II, Hyderabad in C.C.No.742/2012 dt.27.5.2019 directing the opposite parties with joint and several liability to pay Rs.1,50,000/- towards the second surgery, Rs.5 lakhs as compensation for mental agony and Rs.10,000/- as costs to be complied in 30 days failing which the amount of Rs.1,50,000/- and Rs.5 lakhs shall carry interest @ 7% p.a. till realisation.
202). a). The brief averments of the complaint in C.C.No.742/2012 are that the opposite party no.1 is the Maternity hospital represented by its Managing Director, opposite party no.2 is senior Gynaecologist, whereas the opposite parties 3 & 4 are also Gynaecologists working in opposite party no.1 hospital; that the complainant conceived in the month of November,2010 and initially had ante natal checkups at Singapore and registered at opposite party no.1 hospital vide ANC no.3122/11 and MR NO.157682 on 27.5.2011; that she consulted opposite party no.2 and after conducting investigation and tests, the complainant was informed that everything was normal and even given the expected date of delivery as 6.9.2011; that subsequently, the complainant went for regular checkups; that on 8.9.2011 having completed 40 weeks of gestation period, she was admitted in opposite party no.1 hospital with suspicious vaginal leakage; that she was kept under observation and on 9.9.2011 around 6 p.m. opposite party no.2 informed the complainant and her parents that there were no forceable complications and they are expecting normal delivery; that around 8 p.m. she was taken into the labour room and around 11 p.m. one of the junior doctors informed to the parents of the complainant that she needs emergency caesarean operation and accordingly operation was performed and she delivered a male baby and post operative period was said to be uneventful and she was discharged on 13.9.2011 to come for review on 17.10.2011 to consult opposite party no.2.
b). It is further mentioned that on 27.9.2011, the complainant had continuous urine leakage unintentionally and so, rushed to opposite party no.1 hospital, where she was examined by junior doctor by name Soujanya who passed on information to opposite party no.2 , but she was not turned up; that Dr.Sowjanya advised the complainant to consume plenty of water and to perform pelvic floor exercises to stop leakage of urine; that inspite of repeated appeals the opposite party no.2 not turned up and she deliberately avoided the complainant; that the hospital people made the complainant to leave the premises without giving any remedy to her problem; that on the same day, she rushed to Kamineni Hospital at L.B. Nagar and doctors informed that she has "Urethrovaginal Fistula" and referred her to Urologist 3 who after conducting diagnostic procedures informed that the problem occurred during the caesarean operation and it has to be fixed by conducting another surgery; that the complainant got operated on 30.9.2011 and the problem was fixed; that due to the negligence in conducting caesarean operation on 9.9.2011 by the doctors of opposite party, she had Urethrovaginal Fistula; that the complainant requested the opposite party no.1 to supply copy of the case sheet and other records and after securing and going through the same, it was found that the caesarean operation was performed by opposite party no.3 and assisted by opposite party no.4 though opposite party no.2 regularly made prenatal checkups and even assured that she would conduct the surgery failed to do so; that not conducting th surgery by opposite pary no.2 amounts to negligence and unethical practice; that the caesarean operation was conducted without informing the parents of the complainant and her attendants about the risks involved; that due to the damage caused to the lower segment i.e. cervix and uterus the second pregnancy chances were minimised to the complainant; that on 9.6.2012 a legal notice was issued demanding altogether Rs.12 ½ lakhs for which reply notice was issued on 25.6.2012 with false and frivolous allegations; hence, the complaint.
03). a). The brief averments of the written version of opposite parties 1 to 4 are that the complaint is not maintainable either on facts or at law; that the complainant is put to strict proof of all the averments made in the complaint except those that are admitted; that on 8.9.2011, the complainant had fluid leakage from vaginum and she was examined by the doctors and kept under observation; that opposite parties 3 & 4 are not junior doctors, but well experienced; that on 9.9.2011 the complainant had not set into labour, she was induced using PGE1 and later shifted to delivery room at 6.15 p.m.; that while in the progress of labour, the fetal and maternal condition were satisfactory, but at about 11 p.m. delivery by caesarean section was decided in view of presumed fetal compromise ( fetal heart rate variation ) and decision was conveyed after explaining the details to the complainant and her family members and then consent was obtained; that though complainant had ante-natal checkups 4 with opposite party no.2 but in an institution like opposite party, team work prevails; that opposite party no.3 had 10 years experience and was on call duty that night ; that opposite party no.4 was a Gynec Consultant and Goldmedalist in MD in Obstetrics and got varied experience and she performed nearly 200 plus caesarean operations and under the supervisions of seniror doctor performed 1000 + caesarean sections independently including haemorrhage and rupture uterus; that the opposite parties 3 & 4 are not at all junior doctors as depicted by complainant; that opposite party no.3 used single blade of forceps to deliver fetal head at first and it is an accepted practice; that there was a vertical tear in lower uterine Segment and it was sutured by two surgeons and the same is mentioned in the operation notes; that the same was explained to the complainant by opposite party no.2 in her room and the same was documented in the Discharge Summary; that the vertical tear in uterus does not minimise the chances of next pregnancy.
b). It is further submitted that the complainant was in the hospital for 5 days without any complications regarding "urinary incontinence" and she might have developed it after two weeks though rare; that urinary incontinence may develop as a post partum complication; that injury to the ureter can occur during the extension of uterine incision to facilitate delivery of the baby, especially when it is done on emergency basis; that on 27.9.2011 the complainant came to the emergency department of opposite party no.1 with a complaint of episodes of passing urine during night and occasionally during day time unintentionally; that she was examined by Dr.Soujanya, MD and diagnosis was made on the continence of urine and she was subjected to urine examination to earth out infection and to encourage the complainant, she was advised to consume plenty of water and to perform pelvic floor exercises; that the complainant was advised to report before the Gynaecologist, but she did not come back and never given any opportunity to evaluate and treat her problem; that the allegation of opposite party no.2 deliberately avoided to meet the complainant on 27.9.2011 is denied; that development of Uretero Vaginal Fistula at the time of conducting caesarean operation due to the negligence is false and baseless; that on 5 15.9.2011 the complainant came to opposite party no.1 hospital complaining pain in stitches and by that time she had normal bowel and bladder habits and her wound was found healthy; that the alleged promise of opposite party no.2 to conduct caesarean operation by herself on the complainant is false and incorrect; that unless the case record relating to Kamineni Hospital is placed before the opposite parties, cannot say anything with regarding to the findings therein; that the allegation of inexperience of opposite party no.3 in using forceps thereby extensive tear of lower segment is baseless; that the claim amount is exorbitant and not at all maintainable; that a suitable reply notice was given to the legal notice issued by the complainant; that there is no negligence or deficiency in service on the part of the opposite parties 1 to 4 towards the complainant. With these pleas requested to dismiss the complaint with costs.
04). Before the Commission below the complainant filed evidence affidavit as PW.1 and got marked Exs.A1 to A18. Opposite party no.3 filed evidence affidavit as RW.1 and opposite party no.2 filed evidence as RW.2 and got marked Exs.B1 to B18. Both of them served with interrogatories for which they have answered. Father of the complainant by name Sri P.Raghavender/PW.2 was examined in cross. Both sides filed written arguments besides oral submissions.
The Commission below settled the following points for consideration "1) has there been deficiency in service and negligence on the part of the opposite parties in the treatment given to the complainant? 2) If so, is the complainant entitled to the compensation she seeks? 3) To what relief?".
Having gone through the entire record, the Commission below passed the order as stated supra.
05). Aggrieved by the same, the present appeal is filed with the following grounds:
The order of the Commission below is contrary to law, weight of evidence and probabilities of the case; The Commission below passed the order without taking into consideration the factual aspects and failed to observe that the complainant failed to consult a 6 Gynaecologist in opposite party no.1 hospital on 27.9.2011;
The Commission failed to observe that the complainant had no urinary incontinence problem during her stay in opposite party no.1 hospital and no opportunity was given for the opposite party to identify and attend the problem;
The Commission below erroneously held that the opposite parties deviated from normal practice which amounts to medical negligence and it was made without appreciating the evidence on record; The Commission below failed to discuss various judgements relied upon by the opposite parties; The Commission below failed to observe that the surgery was performed by fully qualified doctors who possess required skill;
Commission below failed to observe that the caesarean operation was performed in an emergency manner due to fetal compromise and due to the same tear in the lower segment of ureter occurred to facilitate delivery of baby ;
Commission below failed to observe that there was no negligence and deficiency in service on the part of the opposite parties;
The Commission below failed to look into the
guidelines issued by Supreme Court in Jacob
Mathews vs. State of Punjab and relied upon the case
by referring Dharampal vs. Oriental Insurance Co.Ltd. judgement of NCDRC; with these grounds and others will be urged at the time of arguments , requested to allow the appeal by setting aside the impugned order.
06). Now the points for determination before this Commission are :
i. Whether tear in the lower segment of the ureter is possible to occur in emergency C-Section operations?
ii. Whether the complainant was not
properly attended in the opposite party
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no.1 hospital on 27.9.2011? if so, is it
amounts to deficiency in service?
iii. Whether the impugned order is
sustainable?
iv. Relief?
07). Nobody is examined before this Commission. No document is marked for either side.
Heard the arguments of both sides.
08). Points i & ii : In the case on hand, the deficiency in service or negligence is of two fold viz.: i) due to improper performance of C-Section while applying forceps, or while performing the operation tear occurred in the lower ureter which resulted in Urethrovaginal Fistula; ii) when PW.1 came to the opposite party no.1 hospital with incontinence urine problem, opposite party no.2 not attended PW.1 and no remedy was suggested to her problem. Opposite parties 2 & 3 in their respective cross examinations have admitted that PW.1 was a booked patient for opposite party no.2. Admittedly, opposite party no.2 was not present when operation was performed on PW.1 and there was no notings in the Case Sheet by opposite party no.2 regarding the line of treatment or the way in which the operation was conducted. It is important to note that, if any patient went to any hospital to be treated by a particular doctor and gets a promise that he or she would be treated by such doctor, it is the bounden duty of such doctor to attend the patient in case of need. Out of the opposite parties 2 to 4, opposite party no.2 is the senior most Gynaecologist and by reposing faith in opposite party no.2, complainant booked her as the doctor to perform her expected delivery.
09). The appellants/opposite parties counsel relied upon several case laws and given more stress on the Jacob Mathews case reported in 2005 (6) SCC. He relied on the following citations also:
i. Vinod Jain vs. Santokba Durlabhji Memorial Hospital - 2019 (12) SCC 229;
ii. Senthil Scan Centre vs. Shanti Sridharan and Another -2010 (15) SCC 193;8
iii. Ms.INS.Malhotra vs. Dr.A.Kriplani & others -2009 (6) ALD P.25(SC)=(2009) 4 SCC P.705 ;
iv. Kanhiayalal Dubey vs. Dr.Sanjay Jain - III(2010) CPJ P.217 (NC) ;
v. Kusum Sharma and others Vs.Batra Hospital and Medical Research Centre - (2010) 3 SCC 480;
vi. Dr.Harish Kumar Khurana vs. Joginder Singh & Others - (2021) SCC Online SC 673 ;
vii. C.P.Sreekumar ( Dr.), MS(Ortho) Vs. S.Ramanujan
- 2009 (7) SCC 130 ;
viii. Bombay Hospital & Medical Research Centre vs. Asha Jaiswal & ors. - Civil Appeal No.1658 of 2010 & Civil Appeal No.2322 of 2010 ( SC) DT.30.11.2021;
ix. State of Punjab vs. Shivram - AIR 2005 SC 3280 x. Martin Dsouza vs. Mohd. Ishafaq 2009 (3) SCC P.1.
In the above cases, at one place or the other, the Jacob Mathews case was referred including Bolams case as a test for proof of negligence. The gist of all the cases is that the principle of res ipsa loquitur cannot be applied solely to decide the negligence factor of a doctor. The guidelines are given to weigh medical negligence case which are viz. i) state of knowledge by which standard of care is to be determined of a doctor; ii). standard of care in case of charge of failure: a) to use some particular equipment or b) to take some precaution; iii) enquiry to be made when alleged negligence is : a) due to an accident or b) due to an error of judgement in choice of a procedure or its execution. It is further stated that consideration to be kept in mind by any Forum trying the issue of specific negligence by a medical practitioner. To attract the negligence, a professional be saddled with liability, the following factors are to be proved vis: i) when he was not possessed of requisite skill which he possessed to have possessed; ii) when he did not exercise with reasonable competence in the given case, the skill which he did possess and standard to be applied would be that of an ordinary competent person exercising ordinary skill in that profession. The test for professional negligence laid down in Bolam case held to be applicable in the India to distinguish professional negligence from occupational negligence.
10). a). It is the contention of appellants/opposite parties counsel that C-Section was performed by appellant/opposite 9 party no.3, she was having rich experience in performing operations by then and already got 10 years experience as a surgeon and performed hundreds of operations including C- Sections, rupture of uterus etc. It is also the contention that opposite party no.3 is a post graduate and got her degree in a prestigious institution and even a Gold Medalist and assisted main surgeon in hundreds of cases. In nutshell it is the contention that opposite parties 3 & 4 are not junior doctors as branded by respondent/complainant and on the other hand they are well reputed surgeons with experience of performing several operations. It is also the contention that while performing C- Section in an emergency manner due to fetal compromise, the chances of causing a tear to the lower segment of ureter cannot be considered as a professional negligence.
b). Ex.A1- Admission Details goes to show that on 8.9.2011 the complainant/PW.1 admitted in the hospital with vaginal leakage. The condition of PW.1 found to be normal and expected normal delivery. However, on 9.9.2011 emergency C-Section was performed and prior to that opposite party no.3 attempted forceps with single blade. The operation notes goes to show that opposite party no.3 was the surgeon, opposite party no.4 was the assistant surgeon and she was called in view of extension of tear in lower segment. One Rajani was the Nurse and Dr.Sailaja was Anaesthetist. The operation was performed by giving epidural injection. The notes further goes to show that the baby boy was having two tight loops of cord around the neck. Probably this was referred as fetal compromise and considered as an emergency, led to performing the operation. It is also mentioned in the notes that 4 cm. vertical extension into the lower segment near L angle
- Apex secured tear sutured and haemostasis achieved. So, it is the contention of appellants/opposite parties counsel that while performing emergency C-Section, tear occurred in lower segment and it was sutured immediately. It is also contended that use of single blade forceps is worldly knowledged procedure and so allegation that unable to use forceps properly, by opposite party no.3 caused damage to the lower segment which resulted to Urethrovaginal Fistula is incorrect.
10c). It is further argued by the appellants/opposite parties counsel that when two doctors with rich experience performed operation and having found tear they have immediately sutured the same and it shows absence of any negligence on their part. Even though the respondent/complainant counsel stated that Ex.A1 was cooked up to suit the needs of appellants/opposite parties etc., cannot be appreciated for the reason that no such averment was made in the complaint, besides that no expert was examined to establish the alleged negligence of the doctors in performing C-Section.
11). a). On 13.9.2011, PW.1 was discharged from the appellant/ opposite party no.1 hospital with instruction to come for review on 17.10.2011. PW.1 not complained of any leakage of urine from 9.9.2011 to 13.9.2011. On 15.9.2011 PW.1 approached opposite party no.1 hospital with a complaint of pain in stitches and then also there was no complaint of leakage of urine. She was examined and medication was given. Again on 27.9.2011, PW.1 went to the appellant/opposite party no.1 hospital with a complaint of passing urine during nights, occasionally day time unintentionally and sensation of bladder fullness. Dr.Soujanya reported to be MD in the appellant/opposite party no.1 hospital, advised PW.1 to have plenty of water, to perform pelvic floor exercises, timely urination ( 2 - 3 times) and prescribed CUE( complete urine examination) etc. with an instruction to come for review in Gynaecology OP Dept. for further evaluation. On the same day urine culture and sensitivity tests were conducted and report was received on 27.9.2011 at 3.15 p.m.
b). It is the contention of PW1 that when she wanted to meet opposite party no.2 and even sent for a word through Dr.Soujanya, but opposite party no.2 avoided her, whereas it is the contention of appellants/opposite parties counsel that, inspite of instructions, PW.1 not waited and met opposite party no.2 and never came back subsequently to attend the problem. Father of PW.1 who is PW.2, stated in the cross examination that they came to the hospital and after checkup, PW.1 was asked to see the Gynaecologist for further evaluation and ultimately stated 11 that as no Gynaecologist was available, PW.1 could not consult any Gynaecologist .
c). It is important to note that appellant/opposite party no.1 hospital is a known as a Maternity Hospital . Several doctors were working there at that point of time. When PW.1 was advised to consult a Gynaecologist by the Doctor who attended the checkup, it is difficult to believe that no Gynaecologist was available in the hospital by then, leave alone opposite party no.2. Probably PW.1 went away for the reasons better known to her from opposite party no.1 hospital on 27.9.2011.
Therefore, it is difficult to believe that doctors at the appellant/opposite party no.1 hospital including opposite party no.2 refused to attend PW.1 or intentionally avoided.
12). When we googled the reasons for "Urethro Vaginal Fistula", it is observed that "in the developed world Urethro Vaginal Fistulas are most often observed after Urethral Diverticulum Repair attempt, anterior repairs or sling procedures, obstetrical causes are exceptionally rare. In case of Urethro Vaginal Fistula, the cause was Urethral Trauma during routine transurethral catherisation which was most likely caused by inappropriate placement or displacement of folly Catheter Balloon during normal delivery. The tear of the lower segment while performing C- Section can be considered as iatrogenic injury. It is categorically mentioned in the written version as well as in the evidence affidavit by appellant/opposite party no.2 that it is post partum complication including the urinary incontinence. It is further stated that extension of uterine incision will be made to facilitate the delivery of baby especially when it is done on emergency basis.
13). Admittedly, on 27.1.2011 itself PW.1 went to Kamineni Hospital, L.B. Nagar, and Ex.A8-OP Card Receipt goes to show that PW.1 complains of continuous leakage - 3 days, mild pain in lower abdomen, no burning sensation, no fever, involuntary passage of urine, complaint of soakage of clothes/bedsheets O/E- patient gown soaked in urine. Ultimately it is noted "Urethro Vaginal Fistula"? Post LSCS and also stated that Foleys Catheter was removed after 24 hours. It is needless to mention 12 that as per the Discharge Summary of the opposite party no.1 hospital, post operative surgery is uneventful and she was asked to come for review. Even as per PW.1, she had no problem even on 15.9.2011 and approached opposite party no.1 with the leakage of urine on 27.9.2011. Therefore, there is a possibility to consider it as post partum complication of C-Section .
14). a). Ex.A13 is the Discharge Summary issued by Kamineni Hospital. While recording the findings in Case History, it is observed that "she was evaluated and diagnosed to have Uretero Vaginal Fistula. She is not a known patient of Diabetes Mellitus and hypertension". While making recordings - Course in the Hospital( Kamineni Hospital) the findings are that "After thorough pre operative evaluation, patient underwent Left Ureteric Reimplantation under G.A. on 30/9/2011. Cystoscopy findings are urethra -normal, bladder neck-normal, bladder mucosa- normal, no growth/calculi, bilateral ureteric orifices seen normal, no evidence of any fistula......"
b). It shows even though PW.1 was initially diagnosed to have Uretero Vaginal Fistula, the absence of Fistula would reveal that the initial diagnosis is not proper. She was treated for Left Ureteric Reimplantation and stenting was done and subsequently stents were removed on 20.10.2011. It is needless to observe that as per Ex.A8 - OP Card Receipt Foleys Catheter was removed by opposite party no.1 24 hours after the operation. Therefore, we are of the emphatic view that the element of alleged negligence is dearly absent in the case on hand. We are reiterating at the cost of repletion that, due to the inherent risks which are involved in the C-Section, the problem arose i.e. incontinence of urine and for the reasons better known to PW.1 she abruptly left the appellant/opposite party no.1 hospital on 27.9.2011 and never gave an opportunity to appellants/opposite parties to evaluate the reasons for problem and to treat the same at their end. For the reasons better known to PW.1, no experts were examined to prove the alleged negligence, including the doctors like Urologist or Gynaecologist, who treated her in Kamineni Hospital.
1315). It is the contention of the respondent/complainant in the complaint that, due to the negligence in conducting the operation, the chances of second pregnancy became bleak. In Ex.A1 itself opposite party no.1 made a note that Elective LSC at 37 weeks in next pregnancy is a need. No expert gave opinion that there is no chance for PW.1 to have second pregnancy. So, any arguments to that effect have no legs to stand on. The points are answered in favour of the appellant.
16). Point nos. 3 & 4: It is important to note that PW.1 is booked patient for opposite party no.2 and the same is admitted by RWs.1 & 2. No reason was given by opposite party no.2/RW.2 for not attending the delivery of PW.1, including C-Section. As already stated supra, opposite party no.2 is most experienced doctor out of opposite parties 2 to 4 and considering her experience as a Gynaecologist and Obstetrician, PW.1 wanted to have her child under the hands of opposite party no.2. The failure on the part of opposite party no.2 to attend PW.1 at the time of delivery including at the time of C-Section, can be considered as deficiency in service. Her experience would give self satisfaction to PW.1 and her attendants, that even though they are under the safe hands, suffered the problem due to inherent risks involved in the emergency of C-Section; at the same time it is to be observed that taking place of tear, at the lower segment is not the result of any negligence. Non attendance of opposite party no.2/RW.2 is deplorable aspect, for this we are inclined to grant compensation to PW.1.
17). In the result, appeal is partly allowed without costs and appellant/opposite party no.2 is directed to pay a sum of Rs.50,000/- as compensation to the respondent/complainant; that the order of the Commission below in C.C.No.742/2012 on the file of District Commission-II, Hyderabad is hereby set aside. Time for compliance is 30 days. In case of failure, opposite party no.2 shall pay interest @ 7% p.a. on Rs.50,000/-.
SD/- SD/- SD/-
MEMBER(J) MEMBER(J) MEMBER(NJ)
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Dated : 2.3.2023