National Consumer Disputes Redressal
Sherly Vasan vs Dr. Latha Inamdar & Anr. on 5 July, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 537 OF 2020 (Against the Order dated 25/06/2019 in Appeal No. 152/2013 of the State Commission Karnataka) 1. SHERLY VASAN W/O. PARTHASARATHY, R/O. AT 24, 15TH MAIN ROAD, BASAVESHWARNAGAR, BENGALURU-560079 KARNATAKA ...........Petitioner(s) Versus 1. DR. LATHA INAMDAR & ANR. GYNAECOLOGIST AND PROPRITRIX OF TRUPTI NURSING HOUSE, 463, 1ST BLOCK, 3RD STAGE, DR. SIDDAIAH PURANIK ROAD, BASAVESHWARNAGAR, BENGALURU-560079 2. DR. VIJAYA KUMAR LAPAROSCOPIC SURGEON,TRUPTI NURSING HOUSE, 463, 1ST BLOCK, 3RD STAGE, DR. SIDDAIAH PURANIK ROAD, BASAVESHWARNAGAR, BENGALURU-560079 KARNATAKA ...........Respondent(s)
BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER HON'BLE MR. JUSTICE SUDIP AHLUWALIA,MEMBER FOR THE PETITIONER : MS. ANJANA CHANDRASHEKHAR, ADVOCATE FOR THE RESPONDENT : MR. SUDHANSHU PRAKASH, ADVOCATE.
Dated : 05 July 2023 ORDER JUSTICE SUDIP AHLUWALIA, MEMBER
This Revision Petition has been filed by the Petitioner/ Complainant against Respondent No.1/ Opposite Party No.1 and Respondent No.2/ Opposite Party No.2 challenging the impugned Order dated 25.06.2019 passed by the Karnataka State Consumer Disputes Redressal Commission, Bengaluru, in Appeal bearing No. 152 of 2013. Vide such Order, the State Commission had allowed the Appeal while setting aside the Order dated 09.01.2013 passed by the Bangalore IV Additional District Consumer Disputes Redressal Forum, Bangalore, in Consumer Case No. 2501/2010.
2. The brief facts of the case are that the Complainant is a qualified Clinical and Pathologist who was running a clinical Laboratory namely, 'Sri Lakshmi Clinical Laboratory'. It was the case of the Complainant that she had undergone Laparotomy for Cystectomy about 5 years earlier and there is a vertical punctured scar. The Complainant had started feeling pain in the abdomen off and on since October, 2009 and in April, 2010, the pain became severe and she therefore approached the Opposite Party No.1, Dr. Smt. Latha Inamdar, a renowned Gynaecologist, running a Nursing Home called 'Trupti Nursing Home'. The Complainant was examined by the Opposite Party No.1 and a growth/Cyst on her right ovary was diagnosed. Consequently, the Opposite Party No.1 advised her to undergo Laparoscopy for the removal of the Cyst and it was also said that the Opposite Party No.2, a qualified Laparoscopic Surgeon would be conducting the Laparoscopy and the procedure would take around 30 minutes to maximum one hour. It was further contended that the Complainant was admitted in Opposite Party No.1's Hospital on 29.04.2010 and was discharged on 02.05.2010. On 04.05.2010, she developed uneasiness, breathlessness and distension of abdomen and pain, and her stomach had swollen so heavily that she was unable to even sit or move. She was rushed to Opposite Party No.1's Nursing Home and was checked by Opposite Party No. 2 after which it was represented that it was merely gastric and no other problem. However, the condition of the Complainant became worse. Consequently, she was shifted to Panacea Hospital, Basaveshwara Nagara, Bangalore.
3. It was further the case of the Complainant that the Doctors at Panacea Hospital advised her to undergo scanning and subsequently, it was diagnosed that there was a tear on the anterior wall of the colon measuring 4-5 cm. Dr. Anand Kumar at Panacea Hospital on observing the Scan Report stated that the Opposite Party No. 1 and 2 had committed negligence while performing Laparoscopy on the Complainant, as the Opposite Parties had punctured the intestine (Colon) and consequently the faeces had spread to the stomach and other areas resulting in septicaemia. The Complainant therefore underwent an emergency 'Exploratory Laparotomy' at Panacea Hospital for closure of 'Sigmoid Perforation' and 'Diversion ileostomy' on 04.05.2010. It was further contended that the Complainant was kept in the ICU and was on ventilator, and she was also administered antibiotics, antacids, analgesic IV fluids, Inotropes, and various other drugs/treatments. It was further claimed that as result of 'Exploratory Laparotomy', the faecal outputs were collected in a Colostomy bag connected to the right side of the stomach and the Complainant had to change the said bag every now and then.
4. It was further claimed by the Complainant that she had to engage the services of a qualified Clinical Pathologist for running her laboratory. She was again admitted to Ananya Hospital from 13.09.2010 till 21.09.2010 and was under treatment till the filing of the complaint. The Complainant further stated that before conducting the ovarian Cystectomy, the Opposite parties ought to have considered the risk factors for intestinal injury. It was further claimed that since the Complainant had earlier undergone Laparotomy for Hysterectomy, there was every chance of the organs getting damaged in the Cystectomy. The Opposite Parties did not show due diligence to observe if there was any perforation which could have been observed only in the subsequent days when the Complainant took solid food. Hence, the Complaint was filed before the District Forum alleging sheer negligence by the Opposite Parties resulting in deficiency in service seeking payment of Rs.15,57,000/- along with interest.
5. The Opposite Party No.1 appeared before the District Forum and resisted the Complaint thereby denying deficiency in service on her part. It was contended by the Opposite Party No.1 that the Complainant is only a Lab Technician and the fact that she had undergone Laparotomy about 5 years back was also noted in the case sheet when she was admitted as an inpatient on 29.04.2010. It was also contended that the details of the procedure and possible complication were explained to the Complainant and her consent for the said procedure was obtained in writing. It was further contended that the Complainant had right ovarian Cyst with plenty of adhesions. The necessary Laparoscopic Cystectomy and Adhesiolysis was done with all due care and caution. Further, as a matter of procedure, thorough irrigation and suctioning of the abdomen was done for ruling out incidental damage and during this procedure the abdomen was thoroughly looked for any damages and the entire process was completed in an approximate time of two hours. It was further averred that the Complainant did not have any abdominal distention and in fact she passed stools during this time, which are indicative of a stable recovery. The Complainant was discharged on 02.05.2010 in a stable condition and at that time she neither complained of distention nor other extraneous discomfort and she was extended all good care as per the accepted standards of care. The complainant visited the Opposite Party No.1's Nursing Home on 03.05.2010 with abdominal pain, tenderness, distention, and rigidity. She was admitted as an inpatient when she complained of acute pain in the abdomen. She was then administered pain killers and antibiotics and started on IV fluids with other supportive treatment as peritonitis was diagnosed. The Complainant was advised CT Scan if the distention continued. However, she was shifted to Panacea Hospital. It was also averred that the Opposite Party No.1 is not aware of the alleged expenses borne by the Complainant and she should be put to strict proof of all expenses. It was also contended that 'Laparoscopic Ovarian Cystectomy' is a standard procedure for removal of ovarian Cyst on a patient with a medical history of 'Cesarean Section' and 'Hysterectomy'. Further, no allegations of lack of skill or lack of hygiene or lack of examinations were made against the Opposite Parties which are essential concomitants to allege and sustain a complaint of deficiency of service, and the Complainant ought to have placed an independent report.
6. The Opposite Party No.2 also appeared before the District Forum and resisted the Complaint thereby denying deficiency in service on his part. The Opposite Party No. 2 also took various similar defences as those of the Opposite Party No.1 which are not being repeated hereinafter for the sake of brevity. The Opposite Party No.2 in addition to such defences, also stated that he is a visiting Surgeon called upon to conduct 'Laparoscopic Ovarian-Cystectomy'. It was also stated that the Opposite Party No.2 was served with a Legal Notice dated 14.08.2010 and appropriate reply dated 16.11.2010 to the same was issued. Hence, the Opposite Parties prayed for dismissal of the complaint with exemplary cost.
7. The Ld. District Forum vide its order dated 09.01.2013 allowed the Complaint after observing inter alia -
"22. Viewing the case of the Complainant, on the back ground of the oral and documentary evidence of the Complainant placed before the forum, we are of the considered opinion that, the complainant who knocks the doors of the forum seeking relief has unfolded her case by placing clear and tangible material evidence that, the Ops no.1 and did not exercise due diligence as is excepted in the ordinary course and have committed the negligence and deficiency of service while conducting the Laparoscopic surgery on her on 29.04.2010 and have caused the injury to the colon by their negligence and put her to the risk of death as a consequence of septicemia, and accordingly, we answer this point in affirmative."
Hence, the Ld. District Forum partly allowed the Complaint and directed the Opposite Parties Nos.1 and 2 to jointly and severally pay a sum of Rs.5,00,000/- to the Complainant as compensation along with interest @ 9% p.a. and a cost of Rs.5,000 to the Complainant towards cost of litigation.
8. Aggrieved by the above Order, Appeal bearing No. 152 of 2013 was filed by Appellants/Opposite Parties against the Respondent/ Complainant before the Karnataka State Consumer Disputes Redressal Commission, Bengaluru.
9. The Ld. State Commission vide impugned Order dated 25.06.2019 allowed the Appeal while setting aside the Order of Ld. Forum and remanding the matter back to the District Forum to afford an opportunity to the parties to adduce additional evidence and hence, observed inter alia:
"12. In para 15, 16 & 18 of the Order, the District Forum has observed that the act of OP1 in treating the Complainant for peritonitis, when she was re-admitted to on 03.05.2010 makes it abundantly clear that, there was a mistake committed by the Ops while conducting cystectomy on 29.04.2010 and because of it she was having problem of peritonitis and except to this, no other conclusion can be arrived by this Forum. Besides, in the cross-examination of the Complainant and PW2, no specific suggestion were confronted by the Ops to dispute the negligence of the OPs while performing Operation in the Hospital of OP no.1 on the fateful day. Ops were negligent while conducting Laparoscopic operation of the complainant on 29.04.2010 and on account of their negligence, there was a tear on the colon and as a result of it, feacus had spread to stomach and other areas, resulting in septicaemia. Further observed that, when the complainant was re-admitted to the OP Hospital on 03.05.2010 and who OPs were responsible for sigmoid colon aberration/ perforation, hardly there was only one day gap between the date of discharge of the Complainant from the Hospital of OP No.1 and the date of re-admission to the Hospital of OP No.1. The entire evidence of OP No.1 is totally silent on this aspect for the reasons best known to OP No.1 only.
13. Thus in the foregoing circumstances of the case, it is for the Appellants herein by adducing evidence to clarify this aspect as they are not deficient and also subject to cross-examination before the District Forum........."
10. Hence, the present Revision Petition has been filed by the Petitioner/ Complainant against the above mentioned impugned order of the Ld. State Commission on the following grounds -
That the Hon'ble State Commission agreed with the finding of the Ld. District Forum without disturbing the deficiency for service and negligence on the part of the Opposite Parties, the State Commission could not have set aside the Order of the District Forum and remanded the matter for leading additional evidence;
That it was nobody's case that the Opposite Parties did not get an opportunity to adduce evidence. Failure on their part to lead better evidence or fill in the gaps could not be a legal ground to allow the First Appeal;
That the Opposite Parties have miserably failed to prove their case and in fact admitted their negligence in colon perforation while conducting Laparoscopic surgery. The Opposite Parties are constrained by the rule of constructive Res Judicata. No second chance can be given to merely fill up the gaps in evidence of the Opposite Parties;
The Opposite Parties have admitted that Perforative Peritonitis (infection) had set in and therefore they were treating the Complainant for the same. This finding has not been disturbed by the State Commission. Therefore, the order of remand is illegal;
That the Hon'ble State Commission has committed an error in refunding the deposit of Rs. 5,00,000 in the face of serious case of proven negligence in causing perforated colon, faecal Peritonitis, and Septicaemia with septic shock, thereby exposing the Complainant to the risk of death. The Expert Medical Opinion of Karnataka Medical Council also finds the Opposite Parties prima facie negligent;
That the Medical Expert who operated on the Complainant to close the perforated colon and diversion ileostomy also gave evidence on behalf of the Complainant being an Expert in the field;
That the State Commission agrees with the factual findings of the District Forum and evidence on record and without assigning any reason to dislodge the findings of the District Forum the First Appeal could not have been allowed;
That the Complainant ought to be awarded full compensation for lack of ICU facilities at the Opposite Party No.1's Hospital. The Complainant had produced all bills of Hospital expenses of which only a part has been reimbursed by the Insurance Company and the remaining expenses ought to have been granted by the Fora below;
That the Complainant also suffered loss of income due to long period of hospitalisation and incurred additional expenses where the quantification of these expenses would amount to Rs.1,28,000/-. The Complainant is also a widow and the sole earning member, and has suffered immensely due to negligence of the Opposite Parties. She has also suffered immense trauma and pain physically, mentally, and financially;
That the complainant suffered loss of a good organ, i.e. removal of left ovary due to mistake of Opposite Party No.1 in 2005 which is admitted by her in her cross-examination and the Fora below were not justified in not allowing full compensation;
That the Complainant had to undergo a series of abdominal operations due to negligence of Opposite Parties;
That the Complainant had produced all the bills regarding medical expenses which have not been properly considered;
That the District Forum has relied upon various evidences, documents and expert opinion, pleas, case sheets and medical records. The Hon'ble State Commission, however, has not given any reason for setting aside the order of District Forum;
That the Ld. District Forum in para 9 of its judgement notes the say of the complainant regarding causing of injury to colon due to sheer negligence of the Opposite Parties, which has not been countered in the cross-examination. The allegation of the Complainant regarding the tear of colon is also corroborated by evidence. The District Forum also noted in para 18 that the Opposite Party No.1 is silent regarding Peritonitis and sigmoid colon perforation; 11. Vide order dated 16.06.2020, the proceedings before the District Forum pursuant to Order of the State Commission were stayed. Vide Order dated 04.02.2021, this Commission had set aside the Order of the State Commission and allowed both the parties to file additional evidence and brief synopsis of arguments, in order to decide the present case on merits. 12. It has been argued on behalf of the Respondents that the conclusion drawn by the Ld. District Forum is premised on pure assumption since the Respondents as a part of routine procedure treated the Complainant for 'Peritonitis' on re-admission. The conclusions reached therein are ex-facie erroneous and contrary to the facts. The District Forum had failed to consider the Discharge Summary issued by Panacea Hospital that referred to the Histopathology Report and the evidence of Doctor examined on behalf of the Complainant, which establishes that the Complainant's condition of 'Perforative Peritonitis' was diagnosed only after Exploratory Laparotomy surgery. The Ld. District Forum also ignored the fact that the Respondents had conducted Laparoscopic surgery on 29.04.2010 for removal of right ovarian Cysts while the 'Perforative Peritonitis' was on the left side of the abdomen. 13. Heard the Ld. Counsel for the parties. Perused the material available on record. 14. As has been seen from the relevant extracts from the Order passed by the District Forum in allowing the complaint, which have been already set out in Paragraph No. 7 earlier, it is clear that the District Forum had become convinced from the material/evidence on record that the Opposite Parties/Respondents had not exercised due diligence as was expected from them in the ordinary course, and had committed negligence and deficiency in service while conducting the Laparoscopic surgery on the Complainant on 29.4.2010, and had caused injury to her Colon by their negligence, which had resulted in septicaemia/grave risk which could also have been fatal. 15. Interestingly, while deciding the Appeal, the Ld. State Commission also appears to have been convinced about the negligence on the part of the Respondents/Opposite Parties causing Sigmoid Colon Aberration/ Perforation suffered by the Complainant, which can be understood from the relevant observations of the Ld. State Commission, which have already been re-produced in earlier Paragraph No. 9. Nevertheless, instead of deciding the Appeal finally by either accepting the actual available material on record, or even by way of allowing the parties to lead additional evidence if so warranted, the Ld. State Commission on the contrary, granted liberty only to the Appellants/Opposite Parties to adduce Evidence from their side, and remanded the matter back to the District Forum. 16. Such approach adopted by the State Commission was not approved or appreciated by the concerned Division Bench of this Commission when it was hearing the matter earlier on 4.2.2021, and therefore the following directions were passed on that date -"10. The First Appeal is a continuation of the complaint case and in Appellate Forum (State Commission) the case has to be appraised on both facts and law, and then decided on merit. Nothing prevents the first Appellate Forum (State Commission) to take any additional Evidence from the parties and call for the record of the forum of Original jurisdiction (District Forum) to decide the matter on merit. 11. The medical negligence cases need expeditious disposal in the interest of parties on both the sides. In the facts of this case, needless remand, in first appeal, to the District Forum for appraisal and decision afresh, is unnecessary and unwarranted. In the interest of justice and to avoid further delay in adjudication, we deem it appropriate to decide the matter before this Commission on merit. 12. Based on the foregoing discussion, the Order of State Commission is set aside. Parties on both the sides shall file their additional Evidence if any along with brief synopsis of arguments before this Commission within 3 weeks from today and are directed to argue the matter on merits. 17. Pursuant to the aforesaid Order, the Petitioner from her side filed an Additional Affidavit by way of Evidence alongwith certain documents on 20.2.2021, while the Respondents filed Additional Evidence by way of Affidavits of both the contesting Respondents namely, Dr. Latha Inamdar and Dr. Vijaya Kumar, on 12.4.2021, alongwith the brief notes of arguments from their side. In the Additional Evidence from the Petitioner's side, however, a claim was sought to be made out that way back in the year 2005 also, the Petitioner had undergone Ovarian Cystectomy conducted by Respondent No. 1 for removal of cysts in the right ovary, but her left ovary was removed by negligence. In April 2010, the operation to remove the right ovarian cysts was also performed by the Respondent, and in doing so, the Colon was perforated/damaged to an extent of 5 cm. due to negligence on account of which the Petitioner had to undergo emergency operation in Panacea Hospital, Bangalore, for closure of 'Sigmoid Perforation' and 'Diversion ileostomy', and due to such multiple surgeries, the Petitioner developed 'incisional hernia' which caused her a lot of additional pain, suffering and expenses. However, the subsequent travails, allegedly, undergone by the Petitioner were by and large outside her claim in the original complaint, and consequently, when the matter came up for hearing on 28.4.2023, her Ld. Counsel on instructions submitted that she was restricting her claim in the Revision Petition only to that part of the medical negligence alone, which had been specifically pleaded in the complaint as originally filed. Consequently, it is the Additional Evidence from the side of the Respondents which needs to be scrutinised closely to assess whether or not the element of the negligence in providing medical treatment to the Petitioner is established or indicated. The Respondent No. 2 in his Additional Affidavit filed on 12.4.2021 has simply adopted the contents of such Affidavit of Respondent No. 1 also filed on the same date. The material statements given by the Respondent No. 1 in her said Affidavit are as follows -"........6. I state that the Peritonitis is an inflammation of the peritoneum which is caused by a bacterial infection. The Perforative Peritonitis is when peritonitis is caused as a result of any damage to any visceral organs during a surgical intervention or pre-existing pathological condition like (ulcer sigmoid colon in this case which is proved by Histopathological examination of the specimen sent to laboratory). 7. I state that perforation of the intestine is not uncommon happening in such surgical procedures and to rule out the same through irrigation and suctioning was done. I therefore state that merely because such a routine procedure was conducted, no negligence can be assumed on my part. The procedure followed did not indicate that the Complainant suffered from Peritonitis. 8. I state that the Complainant was monitored in the ICU for more than 24 hours and the parameters as monitored in the ICU also did not indicate any Perforative Peritonitis. Thereafter the Complainant was shifted from ICU to the ward and was monitored therein until discharge on 02.05.2010. 9. I specifically deny that there was tear on the anterior wall of the colon (or intestine was punctured) during the surgery, as alleged, as a result of which feces had spread in the stomach of the Complainant. 10. I state that the Complainant was discharged only after she had passed stool - a condition that indicated a successful laparoscopic surgery and recovered bowel movement without any indication of Peritonitis. 11. That on 03.05.2010, the Complainant returned with the Complaint of distension and rigidity in the abdomen. The Complainant was examined once again and had symptoms of peritonitis for which surgeon also was called she was given treatment and was investigated to know the cause for probable peritonitis. 12. I state that in order to rule out peritonitis, the Complainant underwent X Ray scanning at Trupti Nursing Home and CT scan in Panacea hospital (where she was shifted to after developing tachycardia and breathlessness). I state that these tests did not confirm a case of Perforative peritonitis. 13. I state that it is clear from the medical records that the Erect X-ray of abdomen and scanning done at Trupti Nursing Home were inconclusive regarding the cause for peritonitis and even the CT scan done at Panacea Hospital was inconclusive and suggested only "suspicious of Perforative peritonitis". 14. I state that the Complainant was diagnosed as suffering from Fecal peritonitis/Perforative Peritonitis at Panacea Hospital only at the time of an 'Exploratory Laparotomy' procedure and not at any time before that. 15. I state that the Doctor examined on behalf of the Complainant as a witness before the Forum, and the discharge summary issued by the Panacea Hospital (Ex-P3a) establishes that the Complainant's condition of Perforative peritonitis was diagnosed only after the Exploratory Laparotomy surgery. 16. I state that Histopathology report [in the discharge summary, (ExP3a)] prepared at Panacea Hospital suggests a case of sigmoid colon "ulcer". I state that this could have been the cause for peritonitis. I further state that the even CT scan and X Ray did not indicate a case of Perforative peritonitis and exploratory laparotomy was performed to confirm the same. 17. I state that Laparoscopic surgery conducted on 29.04.2010 was for removal of right ovarian cyst whilst the Perforative peritonitis was on the left side of the abdomen of the Complainant........ 18. It is, thus, seen from the aforesaid statements that while denying any negligence in performing the surgical procedure on the Complainant, the Respondent No. 1 also stated that after the surgery the Complainant was monitored in the ICU for more than 24 hrs and the monitored parameters did not indicate any perforated peritonitis, and that after first shifting the Complainant to the ward and only after having seen that she had been passing stools, (a condition indicating successful laparoscopic surgery and recovered bowel movement) without any indication of peritonitis, the Complainant was finally discharged from her Nursing Home. Further, in Paragraph Nos. 13 to 16 of the above deposition, the Respondent has sought to emphasize that 'Fecal Peritonitis'/ 'Perforated Peritonitis' was detected at the Panacea Hospital only at the time of 'Exploratory Laparotomy', and that that the cause for the same could have been sigmoid colon "ulcer". 19. The above statements are, however, contradicted by the own letter issued by Respondent No. 1, Dr. Latha Inamdar, at the time of referring the Complainant to the Panacea Hospital on 4.5.2010, which is Annexure-P7 (page no. 78 of the Revision Petition). The total contents of the communication in this letter are as follows "Ref: Date: 04.05.10 To, Dr. Sumathi Kumar Panacea Hospital, Dear Doctor, Hereby I am referring Mrs. Sherly for ICU care. She has undergone laparoscopic right sided ovarian cystectomy on 29.04.2010, recovered smoothly in post operative period. She developed abdominal distention on 02.05.2010 and was treated for Peritonitis and Paralytic Ileus. She has developed respiratory distress with hypotension since 03.05.2010.
BP 90/60, PO290%, pulse 130/min, she is referred for ICU case. Kindly do the needful."
20. A bare perusal of the aforesaid letter issued by the Respondent No. 1 herself on 4.5.2010 while referring the Complainant to the Panacea Hospital clearly goes to show that following her re-admission in the night of 2-3 May, 2010, the Complainant had been treated for "Peritonitis" and "Paralytic illeus'' which directly contradicts her subsequent statements in the additional Affidavit that "Peritonitis" was first detected/diagnosed only during the course of "Exploratory Laprotomy" in the Panacea Hospital. Significantly, as noted by the Ld. State Commission, no specific suggestion had been made to the Complainant in her cross-examination on behalf of the Opposite Parties to dispute their negligence while performing the operation in the Hospital of Opposite Party No. 1 on the fateful day. Similarly, no such specific suggestion was made to PW-2 namely, Dr. Anand Kumar J., the Consultant Surgeon in the Panacea Hospital who had treated the Complainant after she was referred to the said Hospital by the Respondent No. 1 on 4.5.2010.
21. In addition, it is to be noted that in the Legal Notice (Annexure-P12) sent on behalf of the Complainant to the Respondent No. 2 who had conducted the laparoscopic surgery on her, it was mentioned -
"...5. As a surgeon, before conducting the ovarian cysteotomy, the risk factors which ought to have been considered for intestinal injury are: a) Previous Laparotamy for hysterectomy b) Tender® ovarian cystectomy may be due to infection/endometrioma which predisposes to adhesions c) Unhealthy scar of previous surgery (vertical punctured scar). These factors were never taken consideration by you while you performed the cystectomy. The operative notes do not mention whether the injury to the intestine was looker for specifically. With the above risk facts glairing, it was amenable to exploration. You have performed the cysterectomy on my client, without taking these factors into consideration and consequently there was tear on the anterior wall of the colin which led to faecal peritonitis."
22. However, the reply to the above Notice by the Advocates on behalf of Respondent No. 2 (Annexure-P14) is clearly vague and evasive and it has been mentioned therein -
".....4. The allegation that the "operative notes do not mention whether the injury to the intestine was looker for specifically" does not render itself to any intelligible comprehension. However, the fact that your client did not have any immediate post operative complication is established by the fact that you client while in ICU, at the ward and also at the time of discharge did not have any complaints. It is reiterated that the Doctors at the Nursing Home shifted your client from the ICU to the Ward, and she was subsequently discharged, because she did not have any complaints and was found stable."
23. In the totality of the circumstances, therefore, when it was acknowledged by Respondent No. 1 in her letter dated 4.5.2010 referring the Complainant to the Panacea Hospital that she had been treated for 'Peritonitis and Paralytic illeus' and in view of the fact that no note was made to these facts in her Discharge papers, it would certainly appear to be a case of culpability on the part of the Surgeon performing the right ovarian Cystectomy on 29.4.2010. Again, in the Discharge Summary of the Complainant prepared at the Panacea Hospital (Annexure-P9) to which she had been referred and where she underwent the treatment including another surgery, while it was noted that according to Histopathology of a small specimen, there were features of "suggestive of" Ulcer/Sigmoid Colon, yet it was also categorically noted that according to the CT Scan of the patient's abdomen and pelvis there was Pneumoperitoneum and partly loculated fluid in peritoneal cavity suspicious of perforative peritonitis and that the possibility of post- operative peritonitis could not be ruled out. This apart, the Karnataka Medical Council, a Statutory body which had submitted its Expert Report to the Ld. District Forum (Annexure-P15) had also come to the unanimous opinion that a prima facie case of medical negligence was established against both the Respondents. Moreover, the very fact that the Complainant/Petitioner began to suffer from abdominal pain very shortly after being discharged from the Trupti Nursing Home on 2.5.2010 at about 7.00 p.m. and was then constrained to rush back to the said Nursing Home after only 6 hrs. at 1.00 a.m. on 3.5.2010 as is clear from her Case-sheet prepared by the said Nursing Home (Annexure-P6) belonging to Respondent No. 1 herself, would also strongly go to indicate that some cut or injury at her Colon during the course of ovarian Cystectomy had actually been caused to her, and the mere fact that she was able to pass stools while being detained in the Nursing Home for two days thereafter could not have been a reason in itself to conclude that all was well with her.
24. We are, therefore, also in agreement with the decisions of both the Ld. Fora below that a tangible case of medical negligence on the part of the Respondents/ Opposite Parties leading to Perforated Peritonitis and Septicaemia, which were potentially life threatening. Consequently, Ld. District Forum was justified in concluding that it was a clear case of medical negligence. Regarding the quantum of compensation awarded to the Complainant, we find that the Ld. District Forum had made a reasonable and correct assessment of the same on the basis of the documents actually produced before it by the Complainant, and her omission to show how much amount was paid to the Panacea Hospital by her Insurance Company, which factors have been noted by the Ld. District Forum in Para Nos. 23 & 24 of its original decision pronounced on 9.1.2013. We, therefore, find no reason to interfere with the reasonable and proper decision of the Ld. District Forum. The direction for remanding back the matter to the District Forum as passed by the Ld. State Commission is on the contrary, not sustainable. Consequently, the Revision Petition is allowed after setting aside the impugned Order of the Ld. State Commission and .......... affirming the decision of the Ld. District Forum.
25. No orders as to costs.
26. Pending application(s), if any, also stand disposed off as having been rendered infructuous.
...................................... SUBHASH CHANDRA PRESIDING MEMBER ......................................J SUDIP AHLUWALIA MEMBER