State Consumer Disputes Redressal Commission
Nanag Ram Sharma S/O Prabhu Dayal vs Sharma Charitable Hospital And ... on 28 November, 2017
State Consumer Disputes Reddressal Commission
Jaipur (Rajasthan)
Appeal No. 118/2015
Nanagram Sharma & Ors. Versus Sharma Cheritable Hospital & Ors.
Date of Judgement : 28-11-2017
BEFORE :
Hon'ble Presiding Member : Mr. Vinay Kumar Chawla.
Hon'ble Member : Smt Meena Mehta.
Present :
Appealant : Mr. Umesh Nagpal Advocate.
Respondent : Mr. Arun Jain Advocate.
This appeal has been filed against the judgement of Ld. DCF 1, Jaipur by which the complaint was dismissed.
The brief facts giving rise to this appeal are that on 22/03/2007 the complainant suffered from acute abdomen pain and consulted the opposite party No.2 who runs a private hospital in the name of Sharma Charitable and Reaserach Institute (opposite party No.1). The opposite party No.2 advised ultrasonography of pelvis region same day after report of USG opposite party No.1 prescribed some medicines. The complainant again visited the on 09.05.2007 opposite party No.2 as she again felt the pain and opposite party No.2 referred her to opposite party No.3 who is a gynecologist who operated upon her for hysterectomy the same day and discharged on 16.05.2007. The complainant did not get any relief even after operation and she again visited the opposite party No.2, she was admitted in the hospital but on 03.06.2007 was referred to SMS Hospital, Jaipur where she was finally diagnosed of abdominal adhesion. She was operated upon again for this and appendectomy was also done. The complainant thereafter was relieved of her pain.
-2-The complainant filed this complaint for medical negligence on the ground that her hysterectomy was done without any investigations. She alleged that she was suffering from appendicitis but her uterus was removed. She also alleged that complainant was forced to undergo the blood test and USG in the laboratory of the opposite party hospital and she was also forced to buy medicines from the hospital medical store. She also filed a criminal complaint with the police against the opposite parties for culpable negligence which is still pending as revealed during arguments.
During pendency of this appeal the complaint expired and her legal rpresentatives were brought on record who pursued the complaint.
The opposite party did not appear before the Ld. DCF and ex- parte proceedings were ordered and reply was closed by the Ld. DCF. However, at a very late stage the opposite party wanted to file the reply but the Ld. DCF rejected the application on the ground that it did not have power to review its own order. The opposite party prayed that they may be heard at the time of arguments, this prayer was granted by the Ld. DCF.
The opposite party orally submitted before the Ld. DCF that complainant was prescribed some medicines on 22.32007 and was advised some tests. She again visited the hospital on 08.05.2007 with complaint of abdomen pain and after conducting x-ray and ECG hysterectomy was done. She was discharged on 16.052007 and she against visited the hospital with abdomen pain, she was admitted to the hospital but when her condition did not improve she was referred to SMS Hospital where her appendectomy was done and was discharged on 13.06.2007.
We have heard the Ld. Counsels for the both sides and have perused the record.
On 22.03.2007 when the complainant consulted opposite party NO.2 fibroid was not confirmed as per prescription written by opposite party No.2 there is a question mark (?) against it. On that day the opposite party No.2 prescribed some antibiotics, tablet Kolispass a drug used for pain during periods, capsule Ferisis which is used for treartment for anemics and capsule Menovit which is prescribed for age -3- related macular degeneration and some pain killers and two other tablets (not legible). The USG dated 22.03.2007 was suggestive of uterus fibroid. On 08.052007 she was referred to opposite party No.3 who operated upon her on that day. The discharge summary shows that the complainant was operated upon for TAH (total abdominal hysterectomy) and BSO (bilateral salpingo-oophorectomy). This means removal of all the uterus and the right and left fallopian tubes and the right and left ovaries.
As per medical literature Fibroids are abnormal growths that develop in or on a woman's uterus. Sometimes these tumors become quite large and cause severe abdominal pain and heavy periods. In the other cases they cause no signs or symptoms. The growths are typically benign (NON CANCEROUS). Fibroids develop in different locations. There are many types of fibroids. Some develop outside uterus, others develop in middle muscle layer but are not common. It has also been stated that fibroids may not need treatment if they are small or do not produce symptoms. Surgery is done to remove very large or multiple growths (myomectomy) An abdominal myomectomy involves making a incision in the abdomen to access the uterus and remove fibroids. It has also been stated that hysterectomy is the LAST RESORT when no other treatment works.
The literature further reads that symptoms of fibroids include heavy bleeding between or during periods, pain in pelvis and lower back, increased menstrual cramping, increased urination, menstruation that lasts longer than usual, pressure of fullness in abdomen, swelling or enlargement of the abdomen.
The treatment as per standard protocol is examination of pelvis by gynecologist to check the size and shape of uterus. An ultrasound of high frequency to produce images of uterus. In depth testing is done to take pictures of uterus, ovaries and other pelvic organs. Then medicines are prescribed to shrink fibroids. For large and or multiple growth myomectomy is done and when there is no other option the hysterectomy is done.
The Ld. Counsel for complaint argues that opposite party removed the uterus without any investigations and confirming whether the complainant was suffering from fibroids. Actually she was suffering from appendicitis and her uterus was removed which did not give her -4- relief from pain she was suffering for last couple of months. He further argued that complainant was forced to buy medicines from hospital store and tests were also conducted by the hospital which were not reliable and hysterectomy was done to make money without caring for the patient and when the conditions of the complainant worsened they referred her to government hospital. The Ld. Counsel further argued that the opposite parties have not filed any reply before the Ld. DCF there is no defense and the Ld. DCF erred in dismissing the complaint.
The Ld. Counsel for opposite parties submitted that after USG the complainant was diagnosed of fibroids which was cancerous and hysterectomy was necessary. He submitted that complaint could not prove any negligence on the part of the opposite party. He further argued that hysterectomy was done after consent of the complainant and her husband had been obtained. The written consent was produced before the Ld. DCF and is on record.
We have considered the arguments of the respective Counsels.
The argument of the Ld. Counsel for opposite party that complainant's fibroid was cancerous is totally unacceptable as the literature says that uterus fibroids are non-cancerous and they do not turn in to cancer tumors. Moreover, the opposite party No. 2&3 are not oncologists.
Second argument of the Ld. Counsel for the opposite party that hysterectomy was done after a consent had been obtained from the husband of the complainant is also not acceptable, the consent letter shows that consent was obtained for removal of uterus no consent had been obtained for removal of both fallopian tubes and both ovaries. It is clear that complainant or her husband was not informed properly of the operation. The discharge note clearly states that TAH (total abdominal hysterectomy) and BSO ( both fallopian tubes and ovaries) was done for which no consent seems to have been obtained.
Before TAH and BSO the opposite party no. 3 did not care to go in for required investigations. The USG was done on 22.03.2007 as advised by opposite party No.2. besides this there is no record of any report of investigations which would confirm fibroids in complainant's uterus. No report of x-ray or other tests stated to have been conducted -5- has been produced. No history with regard to primary findings of existence of fibroids was prepared. There is no report or findings that complainant was suffering from heavy bleeding between or during periods or was having abnormal menstruation. Her menstrual history was not taken, which are the primary symptoms of the fibroids. No report of oral examination of pelvic was prepared to know the location, kind and size of the fibroids. It seems that opposite party was in utmost haste to conduct the hysterectomy as this was done on the same day on 08.05.2007 when she was admitted. No repeat USG was considered necessary after two months. The opposite party No.3 who was a gynaecologist did not consider it proper to put the complainant on medication initially or option of myomectomy was not considered whether fibroids can be removed by an incision in the abdomen. It did not thought it fit to prescribe medication and explore the possibility of myomectomy. Straight away TAH and BSO was done the same day. The opposite party did produce the consent form during arguments before the Ld. DCF but did not bother to produce the report or history of diagnosis and circumstances which necessitated immediate operation of TAH and BSO.
When the complainant did not get relief from her constant pain even after this operation she again visited the opposite party on 31.05.2007 and the opposite party did not bother to investigate the cause of her sufferings and referred her to a government hospital which is a normal practice with the private hospitals after they have made their money and condition is not manageable the patient is thrown away.
At the SMS government hospital the complainant was ultimately diagnosed of abdominal adhesions. Abdominal adhesions are bonds of fibrous tissues that form between abdominal tissues and organs after surgery. Adhesions cause tissues and organs in the abdominal cavity to stick together. Surgery is the only way to treat abdominal adhesions which cause pain or intestinal obstruction. The complainant was admitted for suspected appendicitis and was operated upon for abdominal adhesions and appendectomy.
The Ld. Counsel for opposite party has relied on IV (2014) CPJ 549(NC) Ram Chander Rai Vs. Dr. MD Zaheer. In this case it was held that Doctor who performed second operation did not mention about any wrong diagnosis or negligence in previous operation. The facts of this case can be distinguished from the case before us. The facts and circumstances amply show that no attempt was made to confirm the -6- existence of fibroids in the uterus. Early symptoms did not show presence of fibroids as complainant had not complained of heavy bleeding which is a significant symptom of fibroid. No attempt was made to ascertain the location of the fibroids in the uterus. What kind of fibroid had developed was not ascertained, as the small fibroids normally do not need any treatment. No investigations were done before hysterectomy, no record of findings of the gynaecologist is on record as to what did he find on clinical examination. No attempt was made to put the complainant initially on medication or possibility of myomectomy was not explored. While TAH & BSO was performed the complainant or her husband had not been informed of this no consent was taken. The Ld. DCF relied on (2010) 3 SCC Kusum Sharma Vs. Batra Hospital and on a judgement of the Hon'ble National Commission in 2010(4) CPR 79 (NC) Ruth Rajeshwari Vs. Dr. O Venugopala Rai wherein it was held that complainant should produce believable evidence to hold the doctor guilty of medical negligence. In facts and circumstances of the matter before us we are of considered opinion that the opposite party failed to take reasonable care and exercise skill which was expected of a gynaecologist. The opposite party has not cared to file its written reply. The circumstances in which the TAH and BSO was conducted speak itself. Consequently this appeal is allowed. The judgement of the Ld. DCF is set aside. The opposite party is directed to pay a sum of Rs2.5 lakhs as compensation to the complainants. The opposite parties are made jointly and severally liable to pay the amount within one month from date of this order failing which it shall carry interest @ 9% from date of presentation of the complaint. The opposite party shall also pay Rs.11000/- as cost of the appeal.
Appeal is allowed.
Member Presiding Member (Meena Mehta) (Vinay Kumar Chawla)