State Consumer Disputes Redressal Commission
Dharani, W/O Solaiappan, vs The Government Of Puducherry, Rep. By ... on 22 March, 2010
This is an appeal filed by the Complainant in case No BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY MONDAY, the 22nd day of March, 2010 First Appeal No.7/2007 Dharani, W/o Solaiappan, Keelmavilangai Village & Post, Tindivanam Taluk, Villupuram District. Appellant Vs. 1. The Government of Puducherry, Rep. by the Chief Secretary, Secretariat, Puducherry,. 2. The Government Maternity Hospital, Rep. by its Medical Superintendent, Puducherry. .. Respondents (On appeal against the order passed by the District Forum, Puducherry in Consumer Complaint No.26 of 2005 dated 05.02.2007) Consumer Complaint No.26 of 2005 Dharani, W/o Solaiappan, Keelmavilangai Village & Post, Tindivanam Taluk, Villupuram District. Complainant Vs. 1. The Government of Puducherry, Rep. by the Chief Secretary, Secretariat, Puducherry,. 2. The Government Maternity Hospital, Rep. by its Medical Superintendent, Puducherry. .. Opposite Parties BEFORE: HONBLE JUSTICE THIRU N.V. BALASUBRAMANIAN PRESIDENT TMT. K.K.RITHA MEMBER
FOR THE APPELLANT:
Tvl. P.Sankaran & S.Ramalingam, Advocates, Puducherry.
FOR THE RESPONDENTS:
Thiru M.V.Vaithilingam, Government Pleader, Puducherry O R D E R (By Tmt.K.K.Ritha, Member) This is an appeal filed by the Complainant in case No.26/2005 against the Order of the District Forum dt.05/02/2007, Pondicherry, to set aside the Order and allow the Complaint and render justice.
2. Brief facts of the case of the Complainant are that, she was admitted in second Opposite Partys hospital on 26/05/2004. She delivered a male baby on 07/06/2004 through LSCS surgery and on 15/06/2004 she was discharged. She paid Rs.50/- and Rs.62/- towards medical services of Second Opposite Partys hospital. Since the wound caused by LSCS was painful and not healed, the Complainant took treatment from Dr.Shanthi at Tindivanam from 17/06/2004 to 29/06/2004. She was admitted again in Second Opposite Partys hospital on 30/06/2004 with pain and infectious wound caused by the surgery. A sum of Rs.1,366/- was paid as inpatient charges for the services rendered by the Second Opposite Party. At the time of discharge on 13/07/2004 her wound was not healed and there was discharge of pus. Then from 24/07/2004 to 16/08/2004, the Complainant consulted Dr.Prabavathy at Tindivanam and CT Scans were taken on her advice. After scrutinizing the scan reports, Dr.Prabavathy advised the Complainant for surgery, preferably at Second Opposite Partys hospital. So the Complainant got admitted in Second Opposite Partys hospital on 17/08/2004 and took treatment as inpatient. A sum of Rs.50/- and Rs.44/- were paid towards medical services. She was discharged on 01/09/2004 as normal which was not true. The Scan reports from Villupuram were not taken seriously and the sufferings of the Complainant was not considered with due weightage despite, severe stomach pain and continuous pus discharge from the wound.
3. Since her health condition deteriorated, she took treatment from Dr.Parasuraman at Tindivanam from 02/09/2004 to 22/09/2004. As no solution was found for her sufferings and fearing further health complications, she consulted Santhosh Hospital Pvt. Ltd., Chennai. She was admitted there on 23/09/2004 and an emergency surgery was performed on 24/09/2004 by Dr.Kannan, assisted by Dr.Meerabai. On 04/10/2004, she was discharged with the report that a foreign body was removed from the Complainants abdomen and a pad was seen burrowing into the jejunal loops and sigmoid colon forming an abscess cavity. Another surgery was done at the same hospital on 24/02/2005 to set right the colon. Due to the negligent act of the Second Opposite Partys hospital by carelessly leaving the pad in the stomach of the Complainant during the LSCS surgery, the Complainant underwent pain and sufferings, monetary loss and above all the new born baby was uncared and under nourished. Also her husband left his job to be present with the Complainant all the time. According to the Complainant, the act of the Second Opposite Party amounts to negligence and deficiency in service and the First Opposite Party is vicariously liable for the act. The Complainant sought relief of Rs.18,50,000/- (Rupees Eighteen lakhs and fifty thousand) for the negligent services of the Opposite Parties.
4.The Opposite Parties in their reply version submitted the following:
The Complaint is not maintainable, since Op2, the Govt. Maternity Hospital charged no fees from the Complainant and the treatment was given free of cost. Since free service was given to the Complainant, the remedy sought for by the Complainant would not come under the purview of Consumer Protection Act 1986.
5. The Complainant was admitted as inpatient on 26/05/2004 for her second delivery. On 07/06/2004, she gave birth to a male baby through LSCS surgery. The mob counts were checked and after confirming the counts of the material only, the abdomen of the Complainant was closed. On 14/06/2004, the sutures were removed and on 15/06/2004 she was discharged after having satisfied with her health conditions. The Second Opposite Party denied the allegation that the wound caused by LSCS surgery became troublesome. The Opposite Party was not aware of the fact that the Complainant consulted Dr.Shanthi at Tindivanam from 17/06/2004 to 29/06/2004. On 30/06/2004, the Complainant was admitted again for abscess formation, 3 days before and pus discharge from the wound since two days. The Complainant never complained of any pain in her stomach. She was discharged on 13/07/2004 after complete healing of the wound. On 17/08/2004 she was again admitted in Second Opposite Partys hospital with the complaint of post caesarian wound infection. On 1/09/2004 the wound was healed and the Complainant was discharged with advice to come for weekly review for six weeks, but the Complainant never turned up after that. The Opposite Party was unaware of the treatment taken by the Complainant from Dr.Parasuraman at Tindivanam from 02/09/2004 to 22/09/2004. Also the Opposite Party was unaware of the fact that on 23/09/2004, she was admitted in Santhosh Hospital, Chennai and undergone surgery on 24/09/2004. The Opposite Party denied the removal of the alleged foreign body from the Complainants stomach and contended that utmost care and wonderful treatment was given to the Complainant with advice for follow up treatment.
6. This Commission heard the arguments of the learned counsels of the appellant and the respondents, perused the evidences and documents and come to the following conclusion:
7. The Opposite Parties have taken the plea that the appellant is not a consumer, since the service rendered by the Opposite Party No.2, the Govt. Maternity Hospital was free of cost. For the LSCS surgery undergone by the Appellant, no charge was levied towards the expenses, but the amount paid by her was only for bed charges. Exhibits: C1, C2, C6 & C15.
8. Where services are rendered at a Govt. Hospital on payment of charges and also free of charges, the free service also comes under Service: as defined in Section 2(1)(o) of the Consumer Protection Act and the person availing of such service is a Consumer within the meaning of the Act, entitled to file complaint thereunder:-
Sukhwarsha Rani Vs. General Hospital, through its Health Superintendent & Others 2000(1) CPR 337 (chd-UT CDRC), following Indian Medical Association Vs.V.P.Shanta 1995 (3) CPR 412 (SC).
9. Since free service also comes under the purview of Consumer Protection Act, the appellant who availed of the services of respondent No.2 becomes a consumer and she is entitled to seek remedy before this Commission.
10. On the Complainants side CW1 to CW5 were examined before the District Forum and Cw6 was examined before this Commission.
11. Dr.Kannan, CW1 has deposed that, he performed the surgery for the Complainant on 24/09/2004 at Santhosh Hospital, Chennai and removed the foreign body being the pad left by the second Opposite Party, while performing LSCS surgery on 07/06/2004. Also when the abdomen was opened, pus was coming out and when he tried to find out the cause for the pus, he noticed a pad which was a white cotton cloth used for packing the intestine during surgery, was eroding the small and long intestines. The Doctor attended the patient at 12 midnight on 23/09/2004 and surgery was done next day morning. The Doctor said that he did not go through the previous history of the patient before conducting the surgery. He saw the abdomen and scan of the patient and suspected of some foreign body in the stomach. The decision to conduct the surgery was taken by Dr.Meerabai and he went to help her.
12. The second witness of the Complainant, Dr.Shanthi at Tindivanam (CW2) has deposed that the Complainant attended her clinic from 17/06/2004 to 29/06/2004 for pain in sutures and there was no pus formation at that time.
13. The third witness Dr.Prabavathy at Tindivanam (CW3) has deposed that she gave the prescription (Exhibit:C8) for reducing the pus discharge and dressing was done for the wound. While dressing the wound, she found a mass in the lumbar region and after seeing the scan report advised the complainant to consult the second Opposite Partys hospital where the surgery was done. Further Exhibit C10, the CT scan was taken by the Complainant not at her advice and that she was not in a position to give opinion about it. In the Scan report dt.25/07/2004 the uterus was found abnormally bigger in size.
14. Dr.Meerabai of Santhosh Hospital at Chennai, CW4 has deposed that the Complainant came to their hospital on 23/09/204 at 8.30 pm for treatment of discharge of pus in the suture wound. At that time, the Complainant had pain and fever. While examining the patient, she was able to feel a mass in the left upper abdomen and doubted of a foreign body or any obstruction in the gastro intestinal tract. She discussed with Dr.Kannan, CW1 and decided to open her abdomen to confirm the doubt. They relied upon the medical records and investigation reports already taken by the Complainant and no fresh records were taken by the hospital. On 24/9/2004, the surgery started at 6 am and concluded at 7 am. When the abdomen was opened, they found motion oozed out and bowels adherent to each other and when both the doctors tried to remove the mass, they found a cloth measuring 6 x 5 x 4 cm. It was the abdominal pad which looked like a ball in the abdomen. The doctors concluded that the complications were due to the presence of the cotton pad, being the foreign body in the Complainants abdomen.
15. Another witness from the complainants side was CW5,Dr. Parasuraman at Tindivanam, who stated that the Complainant consulted him from 02/09/2004 to 22/09/2004. He gave treatment to control the discharge of the pus from the wound. He advised the Complainant to take sono scan on 02/09/2004, Exhibit:C18 and C19 being the report. Then he came to the conclusion that there might be some foreign body inside the Complainants abdomen because the discharging sinus was not healing even after three months of the surgery.
16. During cross-examination, the doctor said that on 22/09/2004, there was no emergency surgery required for the Complainant.
Exhibit:C19, the CT scan report did not mention of any foreign body inside the abdomen and he did not see the sono scan,Exhibit:18. Since the CT scan reports were not confirmative, he suggested to go for surgery, on the basis of history and clinical examination even though all the investigations did not show any foreign body.
17. The Complainant ,Dharani, CW5 has deposed that the wound of the caesarian operation needed more time for healing. Also she did not know that the wound would cause infection, if it was not maintained hygienically. On 30/06/2004, when the Complainant consulted the Op2 for the second time ,except the complaint of pus discharge she did not have any other complaint. On 17/06/2004, when she consulted Dr.Shanthi she was diagnosed of a cyst over the suture wound. Then she consulted Dr.Prabavathy , who advised for two CT scans (Exhibits: C9 &
10). The doctor diagnosed that the intestine was clubbed together and a surgery was needed. On her advice, the Complainant was admitted in Opposite Partys hospital, for the third time. At that time the pus was continuously discharging from her suture wound, except that she did not have any other complaint. She produced CT scans (Exhibits: C9 & 10) to Opposite Partys hospital doctors. She was advised by Maternity Hospital Authorities to go to the General Hospital for treatment.
She was admitted in maternity Hospital from 17/8/2004 to 01/09/2004.s given a Barium Test. During that period, she did not have fever, but had vomiting sensation. Except that she did not have any other complaint. She was treated by Dr.Dilip Kumar Baliga, surgeon, working at the General Hospital, who had given her a Barium Test. She denied that she was advised to attend the hospital every week for six weeks after her discharge from Op2s hospital during the third time. On perusal of the CT scan reports (Exhibits: C9 to 11, C19 & C20), Dr.Parasuraman has suggested that something was inside her abdomen, but not specifically pointed out what exactly was in the abdomen. Upto22/09/2004, no doctor has confirmed that she was having a foreign body inside her abdomen. On 23/09/2004 she went to Santhosh Hospital, Chennai at about 12 midnight. She went walking to the hospital and added that she was in a serious condition. At first she met Dr.Meerabai at 9pm. in her clinic. She was attended by Dr.Kannan on the same day at 12 midnight and the operation was performed by him next day morning. Dr.Meerabai contacted Dr.Kannan over phone at 9 pm. and it was Dr.Kannan who decided to perform the operation after seeing her. Neither the hospital authorities nor Dr.Kannan obtained consent letter from the Complainant for performing the operation. Dr.Meerabai and Dr.Kannan suspected that there was some foreign body in the Complainants abdomen. The hospital authorities never showed the Complainant the alleged foreign body which was removed from her abdomen, but it was shown to her family members. Further the Complainant continued her treatment from Dr.Kannan.
18. On Opposite Partys side Dr.Kasthuri, Medical Superintendent, Dr.Dilip Kumar Baliga, Director of Health & Family Welfare Services and Dr.Jayanthi, Chief Medical Officer of second Opposite Partys hospital have deposed as Rw1,Rw2 &Rw3 respectively.
19. Dr.Kasthuri, [RW1] has deposed that she was not having any personal knowledge about the treatment given to the Complainant, but she opined that before closing the abdomen, it is a routine protocol to count the surgical pads used during surgery and only after verifying the counts the abdomen should be closed. The doctor said that the reason for the Complainant jumping with pain was because, the pain differs from person to person and when the blood pressure and pulse were in good condition, the complainant was not serious. The reason for not having taken any step to investigate about the nature of the mass, CT scan or MRI scan, was because it was only a wound infection and that the pus culture revealed no growth of organism. The patient was given antibiotic after dressing was done and the wound was healing. Also barium enema was given by the surgeon and his opinion was that the sinus healed, mass abdomen reduced in size. For conducting surgery, only gauze pad is used in Opposite Partys hospital and denied that no pad was left inside the Complainants abdomen at the time of LSCS surgery.
20. RW2, Dr.Dilip Kumar Baliga as Chief of Unit-I of General Surgery at General Hospital, Pondicherry, stated that he examined the Complainant on 19/08/2004. The only complaint was a small sinus in the middle of the operated scar which was discharging thin pus and there was an abdominal mass to the left of the scar. The doctor perused the ultrasound scan report produced by the Complainant and found it normal. The Radiologist found that there was a small mass in relation to abdominal muscle and large bowel and suspected a tumor aarising from large bowel. RW2 advised a barium enema test and found it normal. He reviewed the Complainant on 30/08/2004 and observed that the mass abdomen was reduced in size. She was discharged with instructions to come for weekly review for six weeks. The doctor further stated that he performed more than 25,000 laprotomies, both elective and emergency and having 27 years of experience working in Govt. Hospitals at Pondicherry.
The doctor opined that my clinical examination of the Complainant, Mrs.Dharani and perusal of the investigations available did not give me any indication of mop inadvertently left inside. In my experience when such a condition of a mop inside occurs, the body reacts to this locally and as a whole. The patient will manifest with fever, vomiting and pain. The intestines which are in contact with this foreign body will immediately stick to it and develop enormous swelling. The Complainant was discharged in normal condition and her complaint after two months was a hole appeared in the middle of the wound discharging pus. This is a common complaint among many who did abdominal operations. This is due to reaction of the body to the suture material used or some virus infection in the fat.
21. Dr.Jayanthi, RW3, through her affidavit stated that she is the Chief Medical Officer, having 18 years of service in Health Department, Pondicherry and also performed more than 5000 caesarian operations as a qualified Obstertics & Gynecologist. The doctor stated that three mops were used during surgery as per the hospital practice. She made it sure that all the three used mops were present outside after completion of the surgery. The mop counts and instrument counts were also verified by the staff nurse.
22. This Commission has examined Dr.Vijayashree, Pathologist from Chennai, as CW6, who gave the Histopathological reports (Exhibit:C22) stating that the portion of jejunum with ometal pad of fat and a foreign body were received from Santhosh Hospital. During chief examination, the doctor produced the register in original and the concerned specimen was entered in page No.242, which was verified by the Opposite Partys counsel. According to the report, the intestine segment was taken from the patient Mrs.Dharani, but the same was not produced before this Commission. The doctor said that the specimen and the foreign body were destroyed within one year from the date of receipt of the same. Since the foreign body was altered with blood and it was her assumption that it was blood socked gauze pack, measuring 2.5 cm to 3 cm.
23. This Commission heard the learned counsels for the appellant and respondent and gone through the evidences put forth by all the witnesses. To ascertain the veracity of this allegation made by the appellant against the surgery performed by the Opposite Party No.2, three Doctors, viz. Dr.Shanthi, Dr.Prabavathy and Dr.Parasuram all from Tindivanam were examined on the appellants side. According to Dr.Shanthi, CW2 the Appellant attended her clinic from 17/06/2004 to 29/06/2004 for pain in sutures, but there was no pus formation at that time. Then Dr.Prabavathy, CW3, treated her for reducing pus discharge from the wound and dressing was done for the wound. The Doctor denied that the appellant took the CT Scan by her advice and so she was unable to give her opinion about it. The treatment was given by the Doctor from 24/07/2004 to 16/08/2004 and the scan reports being Exhibits: C9, C10 & C11 dt.25/07/2004, 09/08/2004 and 12/08/2004 respectively. The treatment dates and the scans taken by the Appellant coincide with each other and the Doctors denial that she was not aware of the scan reports cannot be construed as true. A patient cannot suo motto take scan without a Doctors prescription and it is obvious that the scans were taken by the appellant during her treatment from Dr.Prabavathy.
24. The appellants witness Dr.Parasuram, CW5, gave her treatment from 02/09/2004 to 22/09/2004 to control the discharge of the pus from the wound. He suspected some foreign body since the wound was not healing ever after three months of the surgery.
25. The above three witnesses, Dr.Shanthi, Dr.Prabavathy and Dr.Parasuram did not confirm the presence of any foreign body in the Appellants abdomen. To prove medical negligence, exact negligence should be proved beyond a trace of doubt.
In this case the appellants three witnesses failed to prove this.
26. Another witness on the Appellants side is Dr.Vijayashree, Pathologist, CW6 has produced the register before this Commission stating that a foreign body was received from Santhosh Hospital,Chennai, but not produced the foreign body on the grounds that it was destroyed within one year from the date of receipt. The Doctor stated that the foreign body was altered with blood and it was her assumption that it was blood socked gauze pack. Dr.Vijayashree also not confirmed before this Commission the presence of any foreign body.
27. The Doctors who performed the surgery to remove the alleged foreign body was Dr.Kannan and Dr.Meerabai. The appellant was admitted in Santhosh Hospital, Chennai on 23/09/2004 at night. According to the appellant, Dr.Kannan, CW1 attended her on the same day at 12 midnight and he performed the operation the next day morning. The appellant deposed that it was Dr.Kannan who decided to conduct the surgery but the doctor deposed that it was Dr.Meerabai who decided to perform the surgery and he went only to help her. In Dr.Meerabais CW4, deposition it was Dr.Kannan, CW1 who decided to open Appellants abdomen to confirm the doubt that some foreign body was the cause of pus discharge from the wound.
28. The depositions of Dr.Kannan,CW1 and Dr.Meerabai,CW4, are literally contradictory which give a sense of doubt in the way they dealt with the patient. There are many discrepancies come into the surface from the depositions of these two Doctors.
29. While performing surgery the consent of the patient was not obtained by the hospital, which is a serious lapse on the part of the Doctors. Here, we would like to draw support from the judgment of the Honble Apex Court in Samira Kohli v.Dr.Prabha Manchanda & Anr., II (2008) SLT 25=I (2008) CPJ 56 (SC)=2008 AIR 1385, wherein it is observed as follows:
A doctor has to seek and secure the consent of the patient before commencing a treatment (the term treatment includes surgery also). The consent so obtained should be real and valid, which means that the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
The Consent of the patient is vital in any surgery when the patient is conscious. Dr.Meerabai has seen the appellant on 23/09/2004 at 9 pm in her clinic and Dr.Kannan at midnight and the surgery was performed at 6 am on the following day. He stated that he did not go through the previous history of the patient before conducting the surgery. He saw the abdomen and scan reports and suspected some foreign body in her stomach. Through the telephonic conversation of the Doctor with Dr.Meerabai and by seeing the patient at 12 midnight, Dr.Kannan performed the surgery after 6 hours i.e. at 6 am on 24/09/2004 .... Whether any emergency operation is warranted in this case?... None of the Doctors who were examined by the court revealed that the appellant was in a serious state. Moreover the appellant went walking to the hospital. How the abdomen of the patient can be opened without ascertaining the presence of a foreign body?........................Where is the time for Dr.Kannan to assess the actual health condition of the appellant by attending her at 12 midnight and hastily preparing her for surgery at 6.am the following day?.....................Why the two Doctors contradict about who has decided for surgery?.............. If they feel what they have done is right, they can boldly say it is my decision to perform the surgery. They are the eye witness for the appellant who claimed to have seen the foreign body, but each one is putting the blame on the other. Under such situation, can anyone rely upon the statements put forth by these two Doctors?............. We feel that their decision to conduct the surgery without studying the history of the patient and ascertaining whether there was a foreign body in her abdomen is a hasty one. Since Dr.Meerabai and Dr.Kannan are not clear about their own stand and the abrupt way in which the surgery was performed, this Commission is not in a position to uphold their statements.
30. Coming to the respondents side Dr.Dilip Kumar Baliga, RW2 treated the appellant during her third admission in the formers hospital on 19/08/2004 and found that the barium enema test conducted was found to be normal. He relied upon the scan reports taken by the appellant on 25/07/2004, 09/08/2004 & 12/08/204 respectively (Exhibits:C9 to 11). The Doctor stated that there was no indication of mop inadvertently left inside the abdomen and when a mop inside occurs, the body reacts locally and as a whole. The patient would manifest with fever, vomiting and pain. The intestines which are in contact with this foreign body would immediately stick to it and develop enormous swelling.
31. It is common knowledge that when there is any object inside the body other than the normal, there would be some reactions, in the form of fever, swelling and acute pain. The appellant was discharged normal after the surgery. If at all there was any foreign body in the abdomen, the appellant would not be in a position to hold it for a period of 3 months without serious health hazard. In this case except for discharge of pus and intermittent pain the appellant did not show any other symptoms. During the third spell of discharge from the hospital of Opposite Party No.2, the advice by the Doctor in the Case Sheet was to come for weekly review for 6 weeks. The learned counsel for the respondent argued that the appellant instead of attending the hospital of Opposite Party No.2 for review, consulted Doctors at Santhosh Hospital, Chennai ,unnecessarily complicated her health condition, for which the respondent is not responsible and the discharge of pus was due to reaction of the body to the suture material used or some virus infection in the fat. Dr.Kasturi, Medical Superintendent, RW1 stated that gauze pad is used for surgery and denied any possibility of pad left in the appellants abdomen. This statement of RW1 was not refuted by the appellants counsel. So we have to accept the statement put forth by RW1.
32. From the arguments rendered by the learned counsel for the appellant, the hospital records, treatments taken from various Doctors, the trauma undergone by the appellant after undergoing LSCS surgery, this Commission can feel the condition of the concerned person and her family. At the same time the appellant should know why she suffered. She was discharged normal and if she had any complaint she should have taken treatment from the hospital where she had undergone the LSCS surgery. In her case, she shifted from the hospital of Opposite Party No.2 to three Doctors before undergoing surgery at Santhosh Hospital at Chennai. The treatment varies from one place to another. Another lapse on the part of the appellant was that when she was discharged during her third admission in the hospital of Opposite Party No.2, it was recorded by the Doctor in the Discharge Summary to come for weekly review for 6 weeks which the appellant failed to follow. The vital discrepancy in this case is that Dr.Kannan, CW1 and Dr.Meerabai, CW4 failed to prove the presence of a foreign body in the abdomen of the appellant due to LSCS surgery performed by the hospital of Opposite Party No.2.
33. In the result, the appeal stands dismissed, since the appellant failed to prove negligence on the part of the Opposite Parties. The parties are directed to bear their respective costs .
Dated this the 22nd March, 2010.
(N.V.BALASUBRAMANIAN) PRESIDENT (K.K.RITHA) MEMBER