State Consumer Disputes Redressal Commission
Smt. Chandrawati Rai W/O Ramkrishna Rai vs Santokba Durlabhji Merorial Hospital ... on 19 May, 2017
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BEFORE THE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, RAJASTHAN BENCH NO.2,
JAIPUR.
COMPLAINT NO.30/2010
.
1. Smt. Chandrawati Rai wife of Shri Ramkrishna
Rai resident of 75/66, Pratap Nagar, Sanganer,
Tonk Road, Jaipur.
2. Shri Ramkrishna Rai son of Shri Kripa Shanker
Rai, residentof 75/66, Pratap Nagar, Sanganer,
Tonk Road, Jaipur.
...Complainants
Vs.
1. Santokaba Durlabhji Memorial Hospital and
Medical Research Institute, Bhawani Singh Marg
Near Rambagh Circle, Tonk Road, Jaipur (Raj.)
through the Managing Director and Trustee.
2. Dr. Preeti Sharma, Medical Officer and
Gynacologist, Santokaba Durlabhji Memorial
Hospital and Medical research Institute,
Bhawani Singh Marg, Near Rambagh Circle, Tonk
Road, Jaipur (Raj.) (The treating Doctor).
...Non-Complainants.
Date of Order - 19.05.2017
Before:
Hon'ble Mr.Vinay Kumar Chawla - Presiding Member
Hon'ble Mrs. Meena Mehta - Member
Present:
Shri J.P. Sharma, Counsel for the Complainant.
Shri Vizzy Agarwal, Counsel for opposite party
No.2.
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Shri Ashutosh Bhatia and, Divyesh Maheshwari,
Counsel for opposite party No.1.
ORDER
PER MR.VINAY KUMAR CHAWLA (PRESIDING MEMBER)
1. This complaint has been filed for medical negligence.
2. The brief facts giving rise to this complaint are that complainant No.1 was operated upon by Dr. Preeti Sharma for Hysterectomy. The operation was conducted in the hospital of respondent No.1. The operation was performed on 11.11.2008. The complainant's wife was discharged from the hospital with a catheter placed post operatively in the bladder. The complainant alleged that when the catheter was removed the urine started dribbling soiling her cloths and bed. She contacted the hospital they did not pay any attention and advised her to use diapers. On insistence of the complainant No.2 the hospital agreed to refer the complainant to a Urologist and hospital agreed to 3 treat complainant No.1 free of cost. The complainant was referred to Dr. D.N. Kalla but for some reasons the Dr. D.N. Kalla refused to operate the complainant. She was referred to Dr. B.N. Bhargava, Senior Urologist in the hospital. The doctor Bhargava, Senior Urologist operated upon the complainant and a DJ stent was implanted in the urinary junction. One of the ureter was re-implanted and some pelvic exercises were prescribed. The complainant alleged negligence in her treatment and the post operative care.
3. It is the case of complainant that during operation her bladder was damaged and punctured and urine started dribbling. It was a very shameful situation for her. The movements were restricted and she could not move around and was passing urine through catheter only.
4. The opposite party has resisted the complaint. It was submitted that it was an enlarged adenomyosis uterus pressing on the urinary bladder that needed to be separated. It was admitted that accidently 4 few fibers were disintegrated but which were repaired. When the complainant complained regarding passing of urine and soiling clothes and bed the complainant was recatherised. She again complained of leakage of urine from vagina and was referred to Urologist. The Urologist examined the urinary bladder by endoscopic procedure. The opening of left ureter was found to be stretched and irregular. No opening was found to account for leakage from bladder. It was found that bladder could be filled and did hold the fluid. It is submitted that there was some seepage in vagina. Urologist performed a second operation opened her abdomen and left ureter was replanted to a new site in bladder. The entire urinary passage including urinary bladder was patent and intact. The patient was advised pelvic exercises to improve her ability to hold the urine.
5. The complainant has filed detailed affidavits in support of the submissions made in the complaint. The complainant has 5 filed the relevant medical record of the hospital. It has also filed various letters of complaint written to the hospital authorities threatening to expose them and take legal action against them.
6. Dr. Avinash Mishra filed affidavit in support of the written submissions filed by opposite party.
7. Dr. V.S. Chauhan has filed a detailed affidavit on behalf of opposite party No.1. Dr. Preeti Sharma has also filed an affidavit. In her affidavit she submitted that uterus was enlarged in which glandular tissue of the inner lining of uterus invades the thick muscular covering of the uterus causing its enlargement and pressure to the organs surrounding the uterus i.e. urinary bladder. The operation was conducted through laparoscopy, she has submitted that injury to bladder was accidental and not due to any negligence.
8. Dr. D.N. Bhargava has also filed affidavit who submitted that injury to the bladder was not cause of any negligently performed surgical procedure and he submitted that 6 placing of catheter post operatively in bladder was to prevent over stretching the bladder. He submitted that during pylographic examination done on 01.12.2008 no leakage from any part of the urinary passage was seen. He further submitted that during the operation ureteroneocystomy the ureter was re- implanted to a new site in the bladder that took care of passage of urine from ureter. All the opening in urinary bladders were repaired.
9. The complainant had filed written submissions on 24.11.2015 with these written arguments the complainant has also enclosed the copies of some medical records. She has also enclosed some records of Narayana Hrudalaya Hospital, Fortis Hospital for treatment taken in the year 2014 the complainant has also consulted Dr. Sanjay Mittal a doctor in hospital of opposite party No.1.
10. The question for consideration is whether during Hytertectomy the complainant's bladder was damaged and no post operative 7 care was taken and complainant continued with frequent passage of urine. Whether the opposite party was totally apathetic about her condition.
11. Both the parties have submitted their detailed written arguments.
12. We have heard oral submissions made by both the parties and have gone through the written submissions.
13. The initial response of the opposite party with regard to leakage and dribbling of the urine was of total denial. They denied that there was any leakage from the bladder though, they agreed that during hysterectomy the bladder was injured but they submitted that it was totally repaired and no leakage was possible. When the complainant No.1 continued with the complaints of leakage and she was readmitted and catheter was implanted. When the complainants still persisted with the complaint she was given adult diapers for use. It was the defence of the opposite party that after hysterectomy the bladder becomes weak and patient feels 8 difficulty in holding the urine, this can be corrected with pelvic exercises. It was only after the complainant No.2 made written complaints approached the administrative authorities of the hospital, threatened go to media and initiate legal action that opposite party agreed to refer the patient to the Urologist and on 18.03.2009 she was operated by Dr. B.N. Bhargava.
Ureteroneocystostomy (hereinafter referred as UU) was done. In this operation Vesicovaginal Fistula (hereinafter referred to as VVF) was also done.
14. The UU is a surgical transplantation of the ureter in bladder at a different site UU is primarily used for disease or trauma involving the lower 3rd portion of the ureter that results in obstruction or fistula. Thus during hysterectomy not only the bladder but left ureter of complainant No.1 was also damaged which necessitated transplantation at a different site in the bladder.
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15. Similarly the VVF is an abnormal fistula tract extending between the bladder and the vagina that allows the continuous involuntary discharge of urine into vagina vault. The most common type of fistula is VVF in which woman's vagina is connected to urinary bladder. This cause leakage urine from vagina and results in frequent vaginal and bladder infections. This established that bladder and vagina was connected.
16. Fistula is an abnormal passage between two organs in the body.
17. The complainant No.1 was operated by the Urologist on 19.03.2009 and UU and VVF was done is evident of the facts that during hysterectomy an abnormal passage was created to connect the bladder to the vagina but for almost four months the opposite party No.1 & 2 did not try to investigate or to locate the leakage of urine. They were only trying to pass time and giving the adult diapers free of cost. Dr. B.N. Bhargava in para 13 of his affidavit admitted that there was evidence 10 of seepage in vagina. He also admitted that lower 1/3rd left ureter was damaged and obstructed and had to be re-implanted. While Dr. Preeti Sharma in para 22 of her affidavit very casually submitted that lower part of the ureter was expected to recover with passage of time. She has also submitted that complainant No. 1 was able to pass urine voluntarily but some urinary leakage continued. She submitted that repeated examinations revealed no patent opening in the vagina. In fact there is no evidence of conducting any examination of vagina. She further submits that there was nothing to account for leakages and it was accepted that leakages of urine would stop with passage of time or will manifest with breach in urinary passage. It seems she had left the patient at mercy of God either she will be cured by passage of time. Thus attitude of Dr. Dr. Preeti Sharma was of total avoidance. The persistent complainants did not prompt her to investigate fistulas by either vaginogram or a barium enema or blue dye 11 test or other test which would determine the source of seepage. She was totally aphatetic.
18. The arguments of the ld. counsel that if there would have been seepage from bladder the urine would have spread in the Peritoneum and would have resulted in severe infection and sepsis. This argument cannot be sustained as fistula had been created between bladder and vagina and urine was dribbling though it.
19. Even after UU and VVF was done by Dr. B.N. Bhargava the complainant No. 1 had no relief and the problem of dribbling still persisted but the opposite parties were not ready to listen and just wanted to get rid of the patient. The complainant No.2 was desperate in treating her wife- complainant No.1 that after operation by Dr. D.N. Bhargava he consulted Dr. K. K. Sharma, Urologist of SMS Medical Collage and Hospital, Jaipur on 22.02.2010 before that he consulted Dr. Vinay Tomar of SMS Hospital on 09.01.2010. He again consulted SMS Hospital on 10.09.2009 and went to 12 Bhandari Hospital on 10.09.2010 and Jaipur Hospital on 31.03.2011 with complaint of incontinence of urine and all the prescription of these doctors from Ann. 70 to 74 the patient was prescribed Cystoscopy. This shows that even after UU and VVF by Dr. D.N. Bhargava the complainant's problem was not solved and complainant No.2 consulted five other doctors. Ultimately Cystosecopy was done at Narayana Hrudayalaya Hospital on 04.08.2011. The Cystoscopy is a procedure where a thin tube with a camera and light on the other end is inserted from the urethera to bladder to visualize in side of the bladder. After this another procedure was done at Narayana Hrudayalaya Hospital through which bladder was filled with Methylane blue Dye then it was found that blue colored saline was draining through few fistula opening at the vagina vault which was repaired in two layers, transvaginally. This is when that after this procedure the complainant No.2 came out of her three years long ordeal. 13
However, Dr. B.N. Bhargava in his affidavit in para 16 submits that dribbled drops of urine collected in the vagina has been erroneously interpreted by Narayana Hrudayalaya Hospital doctors as indirect evidence of fistulas tract.
20. Thus this was the attitude of doctors of opposite party No.1 as if the complainant was fond of consulting five doctors after UU & VVF and spending money. Obviously when complainant No.1 got no relief after UU & VVF it approached other doctors. This fact cannot be dismissed. Dr. B.NB. Bhargava has not explained with regard to blue dye test conducted at Narayana Hrudalaya Hospital.
21. However, the ordeal of complainant No.1 did not end here and it was subsequently disclosed that through repairs and re- implantation of the ureter the bladder had lost its original potential and complainant No.1 was not able to hold the urine for which she was prescribed certain medicines for holding urine and the complainant No. 1 was prescribed Injection 14 Botox through vagina in the bladder. This treatment was still continuing.
22. In view of the above medical facts it may be believed that injury to the bladder and ureter was accidental when hystertotomy was done but opposite party No.1 & 2 could not point out or prove the fact of enlarged uterus. Obviously before hystertectomy, sonography or other scans must have been taken. If the uterus was enlarged to the extent that its removal may have injured bladder and ureter the Dr. Preeti Sharma was definitely expected to know all these eventualities and take proper care. The patient should have also been communicated the risk involved. The fact of enlarged uterus has not been proved by any record or evidence which was in the custody of hospital.
23. Injuries to bladder and ureter may not have been caused due to negligence but subsequent attitude of avoidance and concealment of injury to ureter would constitute negligence. The embarrassment and humiliation suffered on this account 15 by the complainant No.1 during this period is beyond imagination.
24. Initially the opposite party was not ready toaccept, treat and investigate the seepage and dribbling, did not thought it fit to refer her to Urologist. She was just given adult diapers. It was the result of continued efforts of the complainant No.2 that she was referred to Urologist who done UU & VVF but still the problem was not solved. It has been argued that accidental injury cannot constitute the medical negligence, we agree with the arguments but subsequent behavior of the opposite party which has been discussed above definitely constitute the medical negligence. Is it not medical negligence that for four months after hysterectomy the hospital refused to accept or to explain the fact of urine seepage. Just giving adult diapers was an act of avoidance. Why she was not referred to Urologist for four months. The injury of ureter was totally denied and concealed. Ultimately blue die test to repair and 16 closing of fistula openings in vagina vault was also denied by the opposite party with no plausible explanation of cause of collection of urine in vagina vault.
25. The ld. counsel for the opposite party relied on 2005 (V) SC 297 Jecob Mathew Vs. State of Punjab, 1996 AIR SC 550 Indian Medical Association Vs. V. P. Shantha, 2009 (II) SC 40 Martin F D'souza Vs. Mohd. Ishfaq, 2010 (I) RRW 722 SC Kusum Sharma Vs. Batra Hospital. The ld. counsel has also relied and cited various judgments of other State Commissions. We will discuss the principles of the medical negligence laid down in the judgments of Hon'ble Supreme Court in the above cases. In all the above cases of the Hon'ble Supreme Court cited by the ld. counsel it has been held that negligence is a breach of duty for act which a prudent and reasonable man will not do. In a civil liability it may be enough for the complainant to prove that doctor did not exercise reasonable care. The basic principle relating to 17 medical negligence is known as BOLAM RULE. It was held that test is standard of ordinary skilled man exercising and professing to have that special skill. In Kusum Batra's case it was held that medical professional is expected to bring a reasonable degree of skill and knowledge alongwith a reasonable degree of care. Now applying the above principles to the present facts we would conclude that if it was an enlarged uterus and was exerting pressure on bladder was it not the duty of the Dr. Preeti Sharma to know the complications which may follow. However, the fact of enlargement of uterus was not proved by any evidence from the medical record or by the scan etc. Secondly when the patient complained above dribbling of urine for four months the opposite party refused to accept this fact and the patient was given adult diapers free of cost and prescribed pelvic exercises. Was it not the duty to investigate the complaint of seepage at the first instance. It took them four months to 18 refer the matter to the Urologist who admitted that bladder and ureter was damaged and there was fistula created between bladder and vagina. The opposite party was expected to exercise this degree of reasonable care of investigating the post operative complications which were persistent and causing the patient a great deal of problems.
26. Thus we feel that according to the principles laid down by the Hon'ble Supreme Court the opposite party is guilty of medical negligence.
27. The complaint is allowed and the opposite parties are jointly and severally directed to pay a sum of Rs.20 lakhs to the complainants as compensation within one month from the date of this order. Prosecution cost is fixed at Rs.21,000/- to be paid to complainant.
28. The complaint is allowed.
(MRS.MEENA MEHTA) (VINAY KUMAR CHAWLA)
MEMBER PRESIDING MEMBER
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R.C. KHATRI, PS