State Consumer Disputes Redressal Commission
Church Of South India (Csi) Hospital, ... vs Thangammal W/O. Chenniappan D.No.339, ... on 25 February, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru J. JAYARAM, M.A.,M.L., MEMBER (JUDICIAL) Thiru S. SAMBANDAM MEMBER II F.A.NO.819/2008 (Against order in CC.NO.17/2005 on the file of the DCDRF, Erode) DATED THIS THE 25th DAY OF FEBRUARY 2011 1.
Church of South India (CSI) Hospital, Brough Road Erode- 638 001
2. M. Durai Then Mandala Tiruchabai Perayar All Souls Church Compound Race Course Road Coimbatore-
18 Appellant/ Opposite parties 1 & 2 Vs.
1. Thangammal W/o. Chenniappan D.No.339, Aayirathupathu Colony Mugasipidariyur Chennimalai Via Erode District- 638 051 Respondent/ Complainant
2. Dr. D. Vijayakumar M.S., Church of South India (CSI) Hospital, Brough Road (given up) Erode- 638 001 Respondent / 3rd Opposite party The Respondents as complainants filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.1,00,000/-, as compensation alongwith cost. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.26.9.2005 in OP.No.17/2005.
This petition coming before us for hearing finally on 11.2.2011. Upon hearing the arguments of the counsels on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellants/Opposite parties : M/s. A.K. Kumarasamy Counsel for the 1st Respondent/ Complainant : Mr. K.S. Jeyaganeshan M. THANIKACHALAM J, PRESIDENT
1. The opposite parties 2 and 3 are the appellants.
2. Facts necessary for the disposal of this appeal:
The complainant / 1st respondent, having stomach pain, approached the 1st opposite party, who is working in the 2nd opposite party hospital, which is managed and controlled by the 3rd opposite party on 31.3.2004, for treatment, paying consideration. After examination, the 1st opposite party suggested an operation for removal of uterus, for a permanent cure, accepted by the complainant, resulting admission in the hospital on 3.5.2004, followed by surgery on 5.5.2004, in which uterus was removed.
3. After the operation, since it was defective, the complainant suffered continuous leakage of urine, which was reported to the 1st opposite party on 2.6.2004, who suggested another operation, accepted by the complainant, on which basis, the complainant was operated by the 1st opposite party on 23.8.2004, in order to rectify the defective operation performed on 5.5.2004. Even after the said operation, though assurance was given, leakage of urine does not stop, causing severe problems, mental agony, preventing the complainant, from attending even the day to day household work, thereby treating the complainant very badly, not bestowing proper care expected, from a prudent doctor.
In view of the negligence committed by the 1st opposite party, claiming damage against all the opposite parties, notice was issued, reply received, as if it is an admitted complication, which is not correct. Only because of the negligent act, as well as deficiency in service committed by the 1st opposite party, for which opposite parties 2 and 3 are responsible, complainant suffered to the extent of Rs.100000/-, which is liable to be paid by all the opposite parties. Hence the complaint.
4. The opposite parties 1 and 2, admitting the treatment given to the complainant, by the 1st opposite party, in the hospital of the 2nd opposite party, at the first instance, viz. from 3.5.2004, as well admitting the second surgery performed on 23.8.2004, resisted the complaint, interalia contending that the leakage of urine was almost stopped, that since it required further surgery, for which the complainant was not willing, and therefore no negligence could be attributed, against the opposite parties, that the leakage of urine should have stopped spontaneously, that since the complainant was suffering from heart problem, attending the same, taking due care, surgeries were performed, as per the protocol, and this being the position, the sky high claim of the complainant, is not maintainable, since there was no negligence at all, on their part.
5. The 3rd opposite party, in the additional counter, taking the same stand, as that of opposite parties 1 and 2, further contended that the 2nd opposite party was run by a trust, for charitable purpose, even assuming that the doctor had committed any negligence, he is not liable to pay any amount, though he is the controlling authority of the diesis, thereby praying for the dismissal of the complaint.
6. The District Forum, based upon admitted facts, as well as the admission made in the written version, supported by other documents, including the affidavits, came to the conclusion, that the complainant should have suffered, physically as well as mentally, due to the negligent act committed by the 1st and 2nd opposite party, for which the 3rd opposite party is also liable, that too considering the fact, the opposite parties have failed to produce the case records, which alone would reveal, the procedure adopted by them at the time of the surgery, or subsequent to that viz.
postoperative care, more or less drawing adverse inference, and in this view, though the complainant has claimed a sum of Rs.10 lakhs as compensation, awarded a compensation of Rs.2 lakhs, in addition to a sum of Rs.5000/- towards cost, as per order dt.26.9.2008, against all the opposite parties, jointly and severally, which is challenged only by the opposite parties 2 and 3, and the 1st opposite party, against whom there is a finding, order adverse to him, has not challenged the order, thereby allowing that finding to reach finality.
7. The 2nd opposite party/ 2nd appellant hospital, is run by the 3rd opposite party, whether it is charitable or by a trust or otherwise.
For giving treatment, they used to collect fees, is also an admitted fact, and in this case, they have collected from the complainant certain amounts, not only proved, but also we would say admitted. In the 2nd opposite party hospital, the 1st opposite party was working as a doctor, is also an admitted fact. Therefore, if the doctor, employed by the opposite parties 2 and 3, viz.
appellants, had committed any negligence, or deficiency in service, during the course of his duty employment, thereby caused damage to any patient, it should be held opposite parties 2 and 3 are also responsible, vicariously, and it is not necessary that they should involve directly. In this way alone, order has been passed, not only against the 1st opposite party, but also against opposite parties 2 and 3, and as said above, the 1st opposite party, for the reasons best known to him, has not questioned the findings.
8. The complainant had abdominal pain, or stomach pain, for which having taken treatment elsewhere, then approached the 1st opposite party, on 31.3.2004. Upon clinical examination, probably to have permanent relief, the 1st opposite party advised the complainant, to undergo hysterectomy operation. The complainant also believing the words of the 1st opposite party, that the removal of uterus will give complete relief, accepted, and thereafter on 5.5.2004, a surgery was performed, wherein the uterus was removed. After the removal of the uterus, the complainant had another problem viz. urinary incontinence, i.e., continuous leakage of urine, because of the fact, the bladder failed to have the control or there was some perforation in the bladder. Because of this problem, once again she approached the opposite party on 2.6.2004, and at that time, the complainant suggested rectification surgery, which was also undertaken by the complainant, in the hands of the 1st opposite party on 23.8.2004. Even thereafter also, problem of leakage of urine, has not come to an end, giving problems.
As far as the above facts are concerned, it is not in dispute, and we would say, admitted by the opposite parties also.
9. After the operation on 23.8.2004, since the complainant had continuous problems, she issued a legal notice, accusing the opposite parties, followed by this complaint, ending in her favour, to some extent.
10. In a case of medical negligence, as repeatedly held by the Honble National Commission, as well as by the Apex Court of the land, the initial burden is upon the complainant. The initial burden can be discharged, even on the basis of the dictum of res ipsa loquitor, which principle may be extended in this case. The complainant, at the time of going to the 1st opposite party, for taking treatment, had no problem of urine leakage, or incontinence. Only for the abdominal pain or stomach pain, she had approached the 1st opposite party for treatment, and on the advise of the 1st opposite party, removal of uterus will give complete relief, she agreed, and hysterectomy was done on 5.5.2004. Pursuant to this surgery another complication emanated, and if this complication was the result of the defective surgery on 5.5.2004, then there is nothing wrong in fixing the culpability upon the 1st opposite party, making the opposite parties are also liable vicariously, as said above. Under the above said circumstances, it is for the 1st opposite party, to make out the case, that despite his best effort, in performing the hysterectomy surgery, for the relief of abdominal pain, as known complication, this kind of problem had occurred, for that he cannot be held responsible. In this view alone, we said it is the duty of the opposite party, to make out a case, that too considering the admission made by them, in the written version.
11. In the complaint itself it is said complainant suffered from the problem of continuous leakage of urine due to defective operation conducted upon her by first opposite party. It is further averred in the complaint, that the 1st opposite party suggested another operation for rectifying the defective operation performed earlier by first opposite party 5.5.2004, thereby informing the negligent act of the 1st opposite party, connecting with the first operation, saying definitely that urine leakage was caused, due to the defective surgery performed on 5.5.2004, and this is the affidavit of the complainant also.
Further in paragraph 20 of the complaint, the complainant has stated the leakage of urine is the direct result of defective operation performed on the complainant and the second operation performed on her also could not rectify the defective operation conducted earlier. For these allegations, and accusations, the opposite parties 1 and 2, though denied generally, have admitted in paragraph 9, that the 2nd surgery was performed to rectify the defects, though they would say, for the defects occurred between the bladder and vagina. The defects occurred between bladder and vagina, since admitted, as if it had happened, during the first operation, then it is for the 1st opposite party, to prove under what circumstances, it had occurred, or whether it is an accepted or known complication, during the surgery of hysterectomy, for which practically, we do not have any evidence, and in fact, unfortunately, we would say, the opposite parties have not even filed the case records, pertaining to the surgery performed to the complainant.
12. The complainant before approaching the consumer forum, had issued notice, demanding Rs.20 lakhs, as seen from Ex.A9, for which an interim reply was given, as seen from Ex.A13, stating that the opposite parties are searching the hospital records, later on suitable reply will be given. Accordingly, under Ex.A14, a reply was given, and it should be presumed, that before giving reply, the opposite parties should have perused the records maintained, for the surgery performed to the complainant.
In the reply notice it is said there was a great deal of difficulty in dissecting the intense Fibrous Mass on the left and the bladder was released. As extensive resection was required a total hysterectomy was done. Further it is said, after such surgery, the complainant developed urine leakage, through vagina, which is a known complication of the surgery, further stating, for correction, she was required to come after 3 moths. Though the opposite party had stated, that almost urine leakage was stopped, it was not their case, it is completely stopped.
Thus it is seen, at the time of notice, they had seen the documents, and for the reasons best known to them, they have not produced those documents. Therefore, ordinarily stating that it is a known complication, the doctor cannot escape from the defects committed by them, unless they explained, which was within their knowledge, if not, there is nothing wrong in presuming or drawing an inference, that the doctor, who attended the patient, should have committed medical negligence or dereliction of duty, which is done in this case, and we find no error also, which can be seen from the affidavit filed by one Dr. Prabhakar, who was cross examined also, which is not referred in the judgement.
13. The doctor, who had performed surgery, though filed an affidavit, has not been examined as witness, and he has also failed to produce the documents. The 3rd party viz. Dr. Prabhakr, has filed an affidavit, stating that the complainant had undergone Vesico Vaginal repair on 23.8.2004, following which she had recurrence of the Vesico Vaginal fistula, which is a known complication. It may be true. On that basis alone, unless the doctor explains, he performed the surgery properly, by producing case records and despite that, known complication occurred, we are not going to allow him to go freely. Dr. Prabhakar, who has given the affidavit was cross examined, and he has deposed, that he is giving evidence on the basis of the operation notes of the surgery of the patient. He has further deposed on perusal of the case sheet, he came to know that only one operation was conducted on 5.5.2004, though it is an admitted fact, there was a second operation, by the 1st opposite party on 23.8.2004, which is not spoken by RW1, thereby showing he has not seen the document, and as an obliging doctor, to help another doctor, he has filed a proof affidavit, which cannot be taken as such, that too, when he said, he has seen the operation notes, which was not brought to the forum, for perusal.
Therefore, in our opinion, oral evidence given by RW1, or the 3rd party affidavit, will not serve any purpose, to erase the negligence committed by the 1st opposite party.
14. Urinary Incontinence : Symptoms: Urinary incontinence is the inability to control the release the urine from your bladder. Some people experience occasional, minor leaks or dribbles or urine. Others wet their clothes frequently. As per the literature, In women, the bladder and uterus lie close to one another and are supported by the same muscles and ligaments. Any surgery that involves a womans reproductive system for example, removal of the uterus (hysterectomy) runs the risk of damaging the supporting pelvic floor muscles, which can lead to incontinence. Thus it is seen, removal of the uterus runs the risk of damaging certain muscles, followed by incontinence. If the doctor had performed the surgery, taking precaution to avoid this known complication, still it had happened, we are not here to accuse the 1st opposite party, for that we require the operation notes, other case history of the complainant, which are all not at all produced, though it was available, as spoken by RW1. If the case records are produced, probably that would reveal the negligent act committed by the 1st opposite party, and that is why not produced, and this kind of inference is permissible under law. Therefore, taking advantage of the known complication, unless it is proved, steps are being taken to avoid the known complication, the 1st opposite party should be held responsible, in the sense, he should have conducted the surgery negligently, resulting perforation in the bladder or some injury, leading to leakage of urine through vagina, which is the problem, the complainant had met with, as seen from Ex.A8. The urologist of Kumarasamy Hospital, examining the complainant, ha issued a certificate, regarding the continuous leakage of urine on 21.1.2005, thereby showing even after the rectification surgery, the 1st opposite party failed to stop the leakage of urine, though it is said, a known complication. This should be construed as medical negligence, as well as deficiency in service.
As we have already pointed out, the findings against the 1st opposite party, is not challenged by him, who alone is competent to challenge. As far as the opposite parties 2 and 3 are concerned, there is no direct accusation against them, in the treatment given to the complainant, and they are made answerable to the act of the opposite party, vicariously. In this view, it may be said, they can also challenge the finding against the 1st opposite party, but they have not produced any document, informing us or satisfying us, that as per the case records maintained by the 2nd opposite party, proper surgeries were performed, and the urine leakage was stopped. The discharge summary of the complainant, at the first time, as well as the second time, certainly would indicate, at what condition she was discharged from the hospital, and if really, after rectification surgery, urine leakage was completely stopped, there should be a note to that effect in the discharge summary of the complainant, after the surgery on 23.8.2004. Having these documents, then not producing the same, drawing adverse inference, for non-production, we are inclined to conclude there is nothing wrong in the findings of the District Forum, as well as in the quantum of compensation also, and therefore the appeal should be rejected, as not meritorious.
15. In the result, the appeal is dismissed, confirming the order of the District Forum in CC.No.17/2005 dt.26.09.2008. There will be no order as to cost in this appeal.
S.SAMBANDAM J. JAYARAM M. THANIKACHALAM MEMBER II JUDICIALMEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Medical