State Consumer Disputes Redressal Commission
Elizabeth Cleetus vs M/S Lourdes Hospital &Anr; on 12 May, 2016
Daily Order KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM C.C. NO.31/2010 JUDGMENT DATED 12/5/2016 PRESENT: SMT. A. RADHA : MEMBER SMT. SANTHAMMA THOMAS : MEMBER COMPLAINANT: Elizabeth Cleetus, Chaneparambil House, Ochanthuruth P.O., Elankunnappuzha illage, Kochi Thaluk, Ernakulam District Cochin-682 508. (By Advs: Shaijan C George) Vs OPPOSITE PARTIES: M/s. Lourdes Hospital, Rep: by Fr. Francis Xavier, Pachalam, Vaduthala Village, Kanayannur Taluk, Thannikkaparambil, Ernakulam, Cochin-12. (By R1 Adv: S. Reghukumar) Dr. Sherly Mathen, M/s. Lourdes Hospital, Pachalam, Vaduthala Village, Kanayannur Taluk, Ernakulam, Kochi-12. (By R2 Adv: George Cherian Karippaparambil) JUDGMENT
SMT. A. RADHA : MEMBER This complaint is filed under Section 17 of Consumer Protection Act claiming compensation for Rs.50,00,000/- with 18% interest against the negligence and deficiency in service on the part of opposite parties. The complainant approached the 1st opposite party, M/s. Lourdes Hospital and the 2nd opposite party is the specialist who is attached to the specialty clinic of gynaecology in the 1st opposite party hospital.
2. The complainant was referred by 'Kristu Jayanti' Hospital of whom under the same management of the 1st opposite party hospital, approached with the complaint of irregular bleeding on 4/6/2009. The Doctor advised the complainant to get removed the uterus and a reference was made for the willingness of hysterectomy. On 15/6/2009 the complainant was admitted and diagnosed 'fibroid uteri'. The second opposite party had opted to conduct Total Abdominal Hysterectomy with Bilateral Salpingo-Oophorectomy. It is alleged in the complaint that while conducting the surgery in a negligent manner caused injury to the rectal wall of the complainant. The complainant experienced severe pain and vaginal discharge and faeces coming through vagina with foul smell. It is stated in the complaint that though complained of pain and discharge of foul smell to the 2nd opposite party, it was taken on a negligent manner and scolded the complainant. On 20/6/2009 the complainant was discharged with advice to review after one month. The letting of gas and faeces through vagina continued which could not be controlled causing humiliation in front of others. It is alleged in the complaint that the husband of the complainant was not entertained when he tried to appraise the situation and advised to review on completion of one month. On examination of urine by another Doctor it was found there is infection. On 20/7/2009 ie. on the date of review, the complainant was examined by 2nd opposite party and found her in perplexed state. The complainant was referred to another Doctor and it was diagnosed the complication as 'recto vaginal fistula' and advised diversion colostomy. After colostomy the complainant had to carry a collection bag for a long period which affected mobility of right hand and on 27/7/2009 she was discharged. Thereafter advised to review for repair of recto vaginal fistula on 05/10/2009 and again discharged on 13/01/2010. It was on 15/3/2010 the complainant was admitted for closure of colostomy. The complainant had to undergo physiotherapy to regain mobility of her hand and is continuing the therapy. The 2nd opposite party concealed the facts from the complainant and caused fecal contamination and severe infection. The opposite parties are jointly and severally liable for the negligence and deficiency in service caused due to negligent performance of hysterectomy by the 2nd opposite party. The complainant had incurred huge expense for the rectification surgery and also physical as well as mental pain and humiliation. The 1st opposite party employed the second opposite party and the 1st opposite party is vicariously liable for all damage caused by 2nd opposite party during the course of employment. The 2nd opposite party failed to detect the recto vaginal fistula caused by her due to negligence. This act of opposite parties is clear negligence and deficiency in service which is to be compensated and filed this complaint.
3. The 1st opposite party admitted that the 2nd opposite party is the head of the Department of Gynaecology of the 1st opposite party hospital. The 2nd opposite party is highly respected doctor in India and abroad and possess post graduate qualification in this specialty and had conducted more than 10,000 procedures. The complainant was admitted on 15/6/2009 and surgery was conducted on 16/6/2009. The post operative period was uneventful and patient was discharged on 20/6/2009. Surgery was conducted with utmost care and absolutely no negligence in performing the surgery. Injuries to adjacent organs are a known accepted risk of abdominal hysterectomy which was happened unfortunately in the case of the complainant. The complainant met the 2nd opposite party on the scheduled review date and on examination found out the complication of the major surgery and on a remedial measure referred to Dr. Santhosh John Abraham who had completely cured the complainant's problem by corrective surgery. It is contended that the physiotherapy undergone by the complainant is purely within her knowledge and has nothing related to the treatment of colostomy undergone by the complainant. The post operative stress caused if any, is not due to any fault of opposite parties. No complaints raised by the complainant during the post operative stay in the hospital. There is absolutely no negligence or deficiency in service on the part of opposite parties. As and when the complications identified the complainant was referred to corrective surgery and the surgery could be done only on three different stages and thereafter no complaint has arised with regard to hysterectomy or the corrective surgery. Being an accepted medical complication in this type of surgery, no negligence can be attributed upon the 2nd opposite party and so also on the 1st opposite party for vicarious liability.
4. The contention raised in the version by the 2nd opposite party is that the complaint is devoid of truth and bonafides and is not entitled to get any relief. The complaint is filed merely to extract money suppressing the facts. The complainant was referred from "Kristu Jayanti" Hospital" due to heavy bleeding per vagina (mennorr-hagia). The USG report revealed fibroid uterus. The complainant had the history of previous caesarean section. On clinical examination and USG report advised for total abdominal hysterectomy with bilateral salphingo Oopherectomy. The complainant was admitted on 15/6/2009 for the surgery to be conducted on 16/6/2009. Intra operative and post operative periods were uneventful and had no 'complaints except mild epigastric discomfort' and discharged on 20/6/2009. No complaint of pain or foul smell, vaginal discharge during post operative period or at the time of discharge and advised for review after one month. On 16/7/2009 at the outpatient department on examination the 2nd opposite party suspected the presence of a small rent in vagina and referred for surgical consultation on diagnosis and confirmed recto vaginal fistula. The repair of rectovaginal fistula was not feasible in one phase and on 20/7/2009 admitted for diversion colostomy. On finding that the rent was healing, posted for laprotomy on 8/1/2010. Intra operatively recto vaginal fistula was identified and resected out rectal fistulous opening was closed and thereafter colostomy closure done on 17/3/2010 and discharged on 25/3/2010. Post operatively after one month of the abdominal hysterectomy, from the clinical symptoms diagnosed as recto vaginal fistula and was given correct line treatment. Recto vaginal fistula is a reported known complication in abdominal operation and in the case of the complainant it was found out only one month after the surgery. It is not attributable to any act or omission on the part of the 2nd opposite party. There is no negligence or deficiency in service on the part of 2nd opposite party in diagnosis, treatment procedure and is not liable to compensate the complainant. There is chance for post operative indestinal fistula attributable to intestinal pathology and underlying inflammatory process. With regard to the complaint of foul smell and vaginal discharge no one will remain medically unattended until the date of review. The statements otherwise in the complaint are false stories for undue gain.
Hence the contrary allegations are false and denied by 2nd opposite party. The continued immobility and treatment for physiotherapy are made up for the purpose of filing the complaint. The compensation claimed is highly exaggerated and without any substance. The treatment given by 2nd opposite party is the standard treatment and 2nd opposite party had taken reasonable care in the treatment of the complainant and the complaint is only to be dismissed.
5. On the basis of the pleadings and contentions raised by the parties, the points coming out for consideration are:-
(1) Whether there is negligence or deficiency in service on the part of opposite parties?
(2) If so, compensation if any.
6. The complainant filed proof affidavit and was examined as PW1 and documents were marked as Exbts: A1 to A12. The second opposite party was examined as DW1 and expert witness as DW2 and medical records as Exbt:X1. The reference letter dated 4/6/2009 from 'Kristu Jayanti Hospital' is marked as Exbt: A1, Discharge Summary dated 20/6/2009, 27/7, 13/1/2010 & 25/3 are marked as Exbts: A2, A3, A5 & A8 respectively. Exbt: A4, A6 and A7 are the Lab reports and Exbt: A9 pertains to the series of medical bills during 8/6/2009 to 26/4/2010. Exbts: A10, A11 are Lawyer's Notice and its reply produced in evidence by the complainant to substantiate the treatment undergone in the 1st opposite party hospital.
Point No.1:-
7. Admittedly, the complainant underwent hysterectomy on 16/6/2009 conducted by the 2nd opposite party, Head of the Gynaecology and Obstretrics Department of 1st opposite party, Lourdes Hospital, on reference made by 'Kristu Jayanti Hospital where the complainant consulted for the problem of irregular bleeding. On USG diagnosis it was confirmed 'fibroid uteri' having multiple fibroid and 2nd opposite party opted for total abdominal hysterectomy with bilateral salpingo Oopherectomy. The allegation against the 2nd opposite party is that the surgery was carried out in a negligent manner and caused injury to the rectal wall. It is alleged that due to vaginal discharge with foul smell and faeces passing through vagina the complainant had to suffer severe pain, infection and humiliation. On advice of Dr. Iylene, urine examination conducted and found infection in urine. Though the complainant's husband tried to inform this situation, it is alleged that 2nd opposite party turned down him and asked to come on the review date. On 20/7/2009, the date of review, the 2nd opposite party found 'rent' in vagina and referred the complainant to Dr. Santhosh John Abraham for surgical consultation and diagnosed 'recto vaginal fistula' and advised for colostomy which had to be performed in three different stages such as diversion colostomy, repair of rectovaginal fistula and for closure of colostomy during the period from 20/7/2009 to 17/3/2010 on 3 intervals. The complainant had to suffer physical as well as mental pain and financial loss towards the operation and hospital expenses. The hysterectomy was conducted on 16/6/2009 and discharged on 20/6/2009 and as per the complainant she had the vaginal discharge followed by the operation and alleged that it was ignored by the 2nd opposite party. On going though the records, A2 discharge summary, the complainant was admitted in the hospital on 15/6/2009 on clinical finding of 'Menorrhagia' and the final diagnosis 'Fibroid Uterus'. The operative procedure underwent on 16/6/2009 for TAH C BSO and advised to review after one month by 2nd opposite party. The informed consent was taken from the husband of the complainant. Exbt: X1, Medical Record, produced by 1st opposite party, the admission of the complainant on 15/6/2009 and operation on 16/6 was performed by 2nd opposite party. The complainant was closely observed, routine medicines given while as in-patient from 16/6/2009 to 20/6/2009. As per surgery notes the procedures were explained as the surgery period was uneventful. There had no peritoneal complaint. The post-operative Nurse's Records confirms that the vital signs were stable and on thorough examination by 2nd opposite party, the complainant was advised for discharge on the 5th day based on the records. There had no other fresh complaints, the patient had good sleep, food and passed motion and suture was intact, the complainant was discharged and for review after one month. There had no vaginal discharge after the operation during the post operative period till 20/6/2009 and it is clear from Exbt: X1 in-patient records. The urine infection alleged was not proved by any evidence or lab records. The allegation of un-attending the husband of the complainant is only to be ignored on the ground that a person who is having vaginal discharge with foul smell remained medically un-attended until the review date. Even on the date of review the vaginal discharge was not complained. It is on examination the 2nd opposite party suspected the presence of small 'rent' in vagina, reference was made for surgical consultation and suspected recto vaginal fistula. The remedial procedure is colostomy which has to be conducted in 3 phases. The complainant was given correct line treatment in strict regard to standard and accepted medical practice. Recto Vaginal fistula is a reported known complication in abdominal operation and it was timely detected and cured. Post operatively there had no symptoms of bowel injury and the complainants vital signs were stable. It is admitted in the reply notice sent by 2nd opposite party that this is the first time there had occurred an injury during surgical procedure and she had performed more than 10 thousand surgeries in her 20 years of career. It is clear from evidence and documents that the allegation of the complainant is not sustainable.
8. We have heard the arguments advanced before us by both the counsels for the parties. The basic issue is whether the 2nd opposite party is negligent in the treatment given to complainant. We have to state here that the burden to prove negligence of a doctor is always on the person who is alleging the same. A professional may be held liable for negligence on the two findings either he was not possessed the requisite skill which he professed to have possessed or he did not exercise with reasonable competence in the given case, the skill which he did possess. The Hon'ble Supreme Court observed in the case of Vinita Ashok V Lakshmi Hospital & Others 2001 CTJ 797(SC)(CP) that "A doctor will be guilty of the negligence if he has not acted in accordance with practice accepted as proper by-responsible body of medical men skilled in that particular art and if he has acted in accordance with such practice merely because there is a body of opinion that takes a contrary view will not make him liable for negligence. This is the standard care required by a doctor". Similarly, if there is breach of failure in taking reasonable care in treatment of the patient as is expected by normal standards of practice it constitutes negligence. So also negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence.
9. Applying the said principle the allegation of the complainant was not proved properly. It is clear from evidence that 2nd opposite party is a qualified professional with experience and is the Head of the department of Gynaecology and obstetrics and possessed requisite skill to treat the patient and the complainant failed to establish that the 2nd opposite party has not exercised with reasonable competence in this case. In the reply notice the 2nd opposite party stated that she had conducted several surgeries and it is the first time an injury occurred to a patient during procedure which is a rare occurrence in her career. The expert, DW2, admitted the surgery procedure for abdominal hysterectomy done is the standard procedure accepted by the 2nd opposite party. The complainant had undergone caesarian section prior to hysterectomy. DW2, the expert in her deposition stated that fistula formed to ischemia or infection that cannot be identified at the time of surgery and that will manifest later only. In the case of the complainant the rent in vagina was detected only at the time of review after one month and immediately referred for surgical consultation and during the post operative period the complainant had no complaints or discharge and vitals were normal. DW2 remarked that she had observed the complications that can occur during TAH and BSO and had the information from text books. Injury caused during surgical procedures can also become a cause for recto vaginal fistula and it is an expected complication during hysterectomy if carried out without due care. The complainant failed to establish that the treatment given was not the accepted standard procedure. The complication like incision to intestine during the procedure of hysterectomy is also an accepted one. It is well settled law that no negligence can be attributed upon a doctor so long as he performs his duties with reasonable skill and competence. Hence no negligence or deficiency in service is attributable as the standard procedure was done by 2nd opposite party in the case of the complainant. Considering the entire evidence and documents we are of the view that the complainant failed to prove the allegation made against the opposite parties.
In the result, complaint is dismissed.
A. RADHA : MEMBER
SANTHAMMA THOMAS : MEMBER
Sa.
APPENDIX
Witness for the complainant:
PW1 - Elizabath Cleetus.
Witness for the opposite parties:
DW1- Dr. Sherly Mathen MD.DGO
DW2- Dr M.A. Kunjamma
Exhibits for the complainant:-
A1 - Reference made by Christujayanti Hospital to Lourdes Hospital.
A2 - Discharge summary dated 20/4/2009 of Lourdes Hospital.
A3 - Discharge summary dated 27/7/2009 of Lourdes Hospital.
A4 - Lab report dated 9/1/2010.
A5 - Discharge summary dated 13/1/2010.
A6 - Lab report dated 8/3/2010.
A7 - Lab report dated 17/3/2010.
A8 - Discharge summary dated 25/3/2010.
A9 - Medical Bills during the period 8/6/2009 to 26/4/2010.
A10 - Copy of Notice dated 01/10/2010.
A11 - Acknowledgement card dated 9/10/2010 (2 nos)
A12 - Medical Bills from 28/7/2010 to 27/8/2010 from Kristu Jayanti
Hospital.
Opposite party:
Lourde's Hospital records - X1.
A. RADHA : MEMBER
SANTHAMMA THOMAS : MEMBER
KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
VAZHUTHACAUD,
THIRUVANANTHAPURAM.
C.C. NO.31/2010
JUDGMENT DATED 12/5/2016
Sa.