State Consumer Disputes Redressal Commission
Smt.Archana Chourasiya vs Dr.Bhavna Atriwal on 16 August, 2022
Daily Order M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PLOT NO.76, ARERA HILLS, BHOPAL FIRST APPEAL NO. 1536 OF 2012 (Arising out of order dated 24.07.2012 passed in C.C.No.115/2010 by District Commission, Khandwa) SMT. ARCHANA CHOURASIA, W/O SHRI SANJAY CHOURASIA, R/O ABOVE PREETI PAAN BHANDAR, OPPOSITE OLD POWER HOUSE, TAPAL CHAAL, KHANDWA (M.P.) ... APPELLANT. Versus 1. DR. BHAWNA ATRIWAL, W/O AKASH ATRIWAL, R/O BRIJNAGAR COLONY, TEHSIL & DISTRICT-KHANDWA (M.P.) 2. BRANCH MANAGER, THE ORIENTAL INSURANCE CO.LTD. BRANCH OFFICE-PADAWA, KHANDWA (M.P.) .... RESPONDENTS. BEFORE : HON'BLE SHRI A. K. TIWARI : PRESIDING MEMBER
HON'BLE DR. SRIKANT PANDEY : MEMBER COUNSEL FOR PARTIES :
Shri Mohan Chouksey and Ms. Pallavi Chouksey, learned counsel for the appellant.
Shri Gaurav Singh Chouhan, learned counsel for the respondent no.1.
Shri V. K. Saxena, learned counsel for the respondent no.2.
O R D E R (Passed On 16.08.2022) The following order of the Commission was delivered by A. K. Tiwari, Presiding Member:
This is an appeal by the complainant/appellant against the order dated 24.07.2012 passed by the District Consumer Disputes Redressal -2- Forum, Khandwa (for short 'District Commission) in C.C.No.115/2010 whereby the complaint filed by the complainant has been dismissed.
2. The brief facts giving rise to the complaint before the District Commission are that the complainant Smt. Archana Chourasia, (hereinafter referred to as patient) having complaint of irregular menses and excessive bleeding from vagina, consulted opposite party no.1. Dr. Bhawna Atriwal (hereinafter referred as doctor) at Khandwa. The complainant got her sonography done on 13.08.2009. After going through the report, the doctor got the sonography done in pathology lab of Shubham Hospital on 14.08.2009 advised patient to remove uterus for which surgery will be done in Shubham Hospital and she had to remain admit for one week and the fees will be Rs.11,000/- and expenses. She admitted in Shubham Hospital, Khandwa on 17.08.2009 where on 18.08.2009 she underwent surgery for removal of uterus. The complainant paid Rs.11,000/- to the doctor. Before surgery catheter was fixed which was removed after 3 days of surgery. On removal of catheter, there was urination per vagina which was brought to the knowledge of the doctor, who told her that the problem will be removed within two days. On 23.08.2009, when she was discharged from the hospital, the problem continued. Again on consulting with the doctor, it was informed that it may due to insertion of catheter and will be resolved soon. Again when the problem persist, consulted the doctor, the doctor put -3- a cotton swab in the vagina and asked her to come on next day. On the next day again when she consulted the doctor, the dotor told her that the problem will be resolved within a period of one and half month and for that the catheter has to be used continuously and if the problem will not resolve then there is a long procedure. When there was no relief, patient's family members took her to Indore where after examination at Sanjeevni Nursing Home and M.Y. Hospital she was diagnosed Vesico Vaginal Fistual (VVF) and it is alleged that it was told that due lack of tests in earlier operation, the problem started for which she has to undergo another surgery. To get second opinion, the patient was taken to Shri Hospital, Jalgaon where the doctors confirmed the opinion of doctors of Indore. After treatment at Jalgaon, she was advised to consult super specialist Dr. R. K. Simpi at Pune. Thereafter on 29.12.2009 surgery was performed by Dr. R. K. Simpi in Ruby Hall Clinic, Pune from where she was discharged on 07.01.2010. It is alleged that due to negligence of opposite party no.1-doctor in earlier surgery she had to spent Rs.33,124/- at Indore, Rs.25,000/- at Jalgaon and thereafter at Pune and thus the complainant was compelled to incur expenses totaling Rs.1,35,134/-. The complainant had to suffer mental and physical pain for which she claimed compensation of Rs.15 lac. The complainant therefore filed a complaint before the District Commission -4- alleging deficiency in service on part of opposite party doctor and the insurance company.
4. The opposite party-1 doctor resisted the complaint stating that since the patient was treated free of cost. As the patient was her neighbour, due to that reason she as per standard method of treatment treated the patient very carefully. After removing the catheter on 21.08.2009 the patient was kept under observation. The complainant was having complaint of excessive bleeding from vagina since last one year and she got treated at Sanjeevni Hospital, Indore by Dr. Sujata Bhargava who advised her for total abdominal hysterectomy. The complainant was also having complaint of hypertension since last three years but did not take treatment for the same. The complainant was also having complaint of Pelvic Inflammatory disease. At the time of second delivery at Indore she faced so many problems and due to bad obstetric history at the time of second delivery she had to hospitalize for a long time.
5. It is further submitted that after operation the patient was advised to take care and catheter will be there. She was also advised to take bed rest, not to lift weight and walk and to take medicines at time. The patient and her husband were explained about the complexity, complications of the operation and the risk factors present in the body of the patient, in Hindi. On not taking precautions, potential risk/danger of VVF was -5- also explained. After getting complete information, the patient's husband gave his written consent for operation. During operation the uterus was found affixed with the urinary bladder. The doctor has performed surgery as per standard procedure of treatment and after operation when there was no complaint, she was discharged on 23.08.2009. After discharge the patient developed problem because of not following the precautions such as not to lift weight and extensive walk. On 26.08.2009 after examination, it was found that the catheter was loose and not intact which was fixed properly. Since the patient was not keeping catheter properly, therefore, she was advised for hospitalization but the patient and her family members did not follow the advice and told her that they will take the patient to Indore. Then the opposite party no.1-doctor gave a referral letter to consult Dr. Sujata Bhargava at Indore. VVF resulted because of earlier body weakness of patient and not following the precautions and not because of surgery performed by the opposite party no.1-doctor. The complainant had filed a complaint with bad intention for getting illegal benefit from the opposite party no.1-doctor. It is further submitted that in case the doctor was found guilty then the opposite party no.-insurance company is liable as she took professional indemnity doctors policy from the insurance company.
6. The opposite party no.2-insurance company resisted the complaint denying the allegations made in the complaint. It was submitted -6- that since the complainant did not pay any consideration therefore, there was no relation between the complainant and the opposite party no.1-doctor of consumer and service provider. On the basis of treatment papers the negligence of opposite party no.1-doctor was not proved and therefore, the insurance company is not liable to pay any compensation to the complainant.
7. The District Commission after appreciation of evidence available on record found that the opposite party no.1-doctor was not negligent in performing operation and guilty of deficiency in service. The District Commission therefore dismissed the complaint filed by the complainant. Hence this appeal.
8. Heard learned counsel for the parties. Perused the record.
9. Learned counsel for the complainant/appellant argued that the District Commission did not consider the medical documents filed by the complainant and erred in dismissing the complaint. The District Commission erred in not holding the doctor negligent while performing the operation due to which the problem developed and due to which the complainant had to suffer physical and mental agony. The opposite party no.1 doctor despite taking payment of Rs.11,000/- has not given any receipt which was asked under the right to information but she was refused the receipt. In this regard police complaint was also made but the police also did not take any action.
-7-It is therefore prayed that the appeal be allowed and the impugned order must be set-aside. The opposite party no.1-doctor be directed to pay compensation of Rs.15 lac to the complainant for the aforesaid reasons.
10. Learned counsel for the opposite party-1 doctor argued that the District Commission has rightly passed the impugned order dismissing the complaint of the complainant. The complainant failed to produce any evidence or any expert report to establish that VVF was developed due to negligence of the doctor. If the problem persists after operation then it cannot be said that it is because of negligence of doctors. The doctor performed surgery after following the standard medical norms. The complainant did not follow the precautions as explained to the patient and her family members. The patient and her husband were explained about the complexity, complications of the operation and the risk factors present in the body of the patient, in Hindi language. It is also made clear that in not taking precautions as explained, there is potential risk of VVF also. On examination the catheter was found pulled out which was fixed properly later. VVF occurred because of earlier body weakness of patient and not following the precautions but not because of surgery performed by the opposite party no.1-doctor. It is therefore prayed that the appeal is liable to be dismissed.
-8-11. Learned counsel for the opposite party no.2-insurance company argued that since the complainant did not pay any consideration therefore, there was no relation between the complainant and the opposite party no.1-doctor of consumer and service provider. On the basis of treatment papers the negligence of opposite party no.1-doctor was not proved and therefore, the insurance company is not liable to pay any compensation to the complainant. He placing reliance on a decision of Hon'ble National Commission in Susmita Roychowdhury & anr Vs B. M. Birla Heart Research Centre & Ors. 2017(2) CLT 507 argued that a doctor cannot be held to be negligent merely because in a matter of opinion, he made an error of judgment. So long a doctor follows a practice, acceptable to the medical profession by that day, he cannot be held liable for medical negligence.
12. On perusal of record, we find that complainant has filed her affidavit and the 149 documents as per list including different prescriptions, discharge cards, reports, medical bills and bills of travel agency. The opposite party doctor filed her affidavit along with 10 documents including admission & operation record, treatment record and medical literature.
13. First of all, we would like to deal with the issue raised by the opposite parties that the complainant is not a consumer as the doctor had treated the patient free of charge and there is no relation of consumer and service provider between them. The District Commission had also arrived at -9- conclusion that the complainant is not a consumer as she did not pay consideration. In this aspect we would like to mention the pronouncement of Hon'ble Supreme Court in Indian Medical Association Vs V. P. Shantha III (1995) CPJ 1 (SC) in which the Apex Court laid down that "Where the service is rendered at a government hospital/health centre/dispensary on payment of charges and also rendered free of charge, then it would fall within the ambit of expression service as defined under Section 2(1)(o) of the Consumer Protection Act, 1986." It is not a case of the opposite party no.1-doctor that she is treating the patients in her clinic/hospital totally free of charge.
14. In view of the aforesaid, in the present case even if the patient was treated free of charge, she is a consumer as defined under the Act. The District Commission has erred in not considering the complainant as a consumer.
15. It is an admitted fact that the patient admitted in the Shubham Hospital, Khandwa on 17.08.2009 where underwent abdominal hysterectomy on 18.08.2009 by the opposite party 1 doctor and she was discharged on 28.08.2009. It is alleged by the complainant that after surgery she had problem of urine passing through vagina, whereas the stand of the opposite party doctor is that after surgery and after removal of catheter i.e. -10- 20.08.2009, the patient remained under observation and thereafter on 23.08.2009 she was discharged (C-2). On 26.08.2009 after examination, it was found that the catheter was loose and not intact which was fixed properly. Since the patient was not keeping catheter properly, therefore, she was advised for hospitalization but the patient and her family members did not follow the advice and told her that they would take the patient to Indore. Then she gave a referral letter to consult Dr. Sujata Bhargava at Indore. It is alleged by the complainant that at Indore, it was diagnosed that she had developed Vesico Vaginal Fistula (VVF) which was later treated at Jalgaoon and Pune.
16. The opposite party-1 doctor stated that the patient did not follow the precautions after surgery and since she was having high blood pressure, pelvic inflammatory disease and bad obstetric history there is possibility of VVF which is a known complication after hysterectomy about which the patient and her husband had already been explained. Due to such type of problems patient had to depend upon the catheter for a long time but she did opt to do so.
17. Before deciding whether there was negligence on the part of the opposite party no.1 doctor we have examined the different documents filed by the parties. C-1 is the USG report dated 13.08.2009 conducted before surgery in which there is specific mention that the uterus is enlarged and -11- bulky. C-2 is the discharge ticket of Shubham Hospital, Khandwa, wherein it is mentioned that the patient was admitted on 17.08.2009 and on 18.08.2009 total abdominal hysterectomy was performed and on 23.08.2009 she was discharged. At the time of discharge she was not having any problem. Thereafter on the basis of referral letter of opposite party no.1-doctor she consulted Sanjivni Nursing Home, Indore who diagnosed VVF. C-3 is discharge paper given by the said Sanjivni Nursing Home, Indore in which it is stated that the patient admitted on 26.08.2009 and discharged on 02.09.2009 where the treating doctor suggested her for cystoscopy. C-4 is the USG report dated 27.08.2009 wherein it is stated 'Urinary bladder show a tiny 6/7 mm posterior wall fistula with VVF with indwelling Foley Catheter. Thereafter she consulted at MYHospital, Indore on 07.09.2009 where she was advised for cystoscopy and on 09.09.2009 cystoscopy was performed and the patient was advised for surgical repair of VVF after 3 three months, which is evident from the C-5. C-6 is the discharge card of Shri Hospital and Research Centre, Jalgaon where the patient was admitted on 30.09.2009 and treated by rail road method and discharged on 11.10.2009.
18. Thereafter there is a discharge card of Suyash Hospital Indore where she was admitted on 19.11.2009 and discharged on 20.11.2009 there she was diagnosed as a case of VVF and UTI (Urinary Track Infection) and -12- some medicines were given. Thereafter she consulted at Noble Hospital, Pune and in the USG report dated 25.11.2009 of Noble Hospital Pune,shows that 'No significant diagnostic pathology is noted.' Thereafter there is discharge card/summary of Ruby Hall Clinin, Pune where she was admitted on 23.12.2009 and discharged on the same day and she was given some medication and she was advised to consult Dr. R. K. Shimpi after five days. Thereafter there is again a discharge card/summary-surgical dated 07.01.2010 (Page 169) showing the patient was admitted on 29.12.2009 and on 30.12.2009 Dr. R. K. Shimpi performed an operation mentioning in operation notes as "Cystoscopy+B/L D-J Stenting+Repair of Vesico Vaginal Fistula AAP; under S/A; B/L D-J Stenting done. She discharged from there on 07.01.2010.
19. On going through the documents filed by the opposite party no.1-doctor we find that there is a referral letter dated 26.08.2009 wherein the opposite party no.1-doctor had mentioned that the "patient Ms.Archana Chourasia had total abdominal hysterectomy under spinal anesthesia on 18.08.2009. Patient was discharged on 23.08.2009 with no complaint. She came to me on 24.08.2009 with watery discharge per vaginum. She was advised for admission but patient and attendants refused admission. Foley's Recatherization done on 24.08.2009. Swab test done-Negative. No discharge per vaginum for one day. She came on 26.08.2009 with -13- complaint of bed wetting. Foley's checked, found pulled. Foley's re-catheterized. Prognosis explained. Antibiotics advised. Patient referred to higher center for further management Dr. Sujata Bhargava Madam to see at Sanjeevni Nursing Home, AB Road, Indore."
20. 'D-2' is dated 18.08.2009 regarding operation notes of the opposite party no.1-doctor, in which she has stated that Total Abdominal Hysterectomy done under spinal anesthesia on 18.08.2009. Further there is specific mention that 'Bladder found densely adhered to cervix. Bladder dissected from the anterior cervix properly.' 'D-3' is the prescription dated 13.08.2009 wherein the opposite party no.1 doctor has specifically mentioned bad obstetric history. Complaint of excessive bleeding Polymenorrhagava, white discharge uterus bulky and advised mobility restricted.
21. From the above documents filed by the opposite party no.1-doctor it is clear that when the patient consulted the doctor with complaint of urination per vagina, after having discharged from the hospital, that time she was having no complaint, the patient was advised for admission but the patient and her family members refused admission and on their refusal the treating doctor gave her a referral letter for a higher center. From the document it is clearly established that during operation when the doctor found that the bladder densely adhered to cervix she dissected the bladder -14- from the anterior cervix properly just in the interest of patient. It is also pertinent to mention here that the complexity, complications of hysterectomy were already explained to the patient and her husband and her husband given consent for the operation.
22. So far as the post-operative problem of VVF is concerned, the opposite party no.1-doctor has filed different medical literature. In the medical book Tilende's Surgery book under the head Surgery for fertility and benign gynecological conditions under the sub-heading of Complications of Hysterectomy (at Page 240) it has been specifically mentioned that Vesicovaginal Fistula is known complication of Hysterectomy. At page 241 it is further mentioned that Predisposing risk factor of VVF include a history of pelvic irradiation, Caesarian Section, endometriosis, prior pelvic surgery or pelvic inflammatory disease, diabetes mellitus, concurrent infection, vasculopathies and tobacco abuse. Patients undergoing total abdominal hysterectomy are at a particular risk.
23. In an another medical book Novaks book of surgery under the Chapter 22 Hysterectomy and under sub-heading of Vesicovaginal Fistula (Page 269) it is mentioned that Vesicovaginal Fistulas occur more often after total abdominal hysterectomy for benign gynecologic disease. Further it is mentioned that Patients who have a postoperative vesicovaginal fistula develop a watery discharge 10 to 14 days after surgery. Some fistulas -15- resulting from surgery are noted as early as the first 48 to 72 hours after surgery. After vaginal examination with a speculum, the diagnosis can usually be confirmed with the insertion of a cotton tampon into the vagina followed by instillation of methylene blue or indigo carmine dye through a transurethral catheter. If the tampon stains blue, a vesicovaginal fistula is present. Further it is mentioned that If a vesicovaginal fistula is diagnosed, a Foley's catheter should be inserted for prolonged drainage. As many as 15% of fistulas spontaneously close with 4 to 6 weeks of continuous bladder drainage. If closure has not occurred by 6 weeks, operative correction is necessary. Waiting 3 to 4 months from the time of diagnosis before operative repair is recommended to allow reduction of inflammation and to improve vascular supply.
24. From the documents particularly D-1, filed by the opposite party no.1-doctor it is clear and admitted fact that after hysterectomy, at the time of discharge the patient was having no complaint. It is also an admitted fact that on the complaint of watery discharge from vagina catheter was fixed and for one day a cotton swab was put in vagina, which is standard procedure as is evident from the above medical references. From the document D-2 filed by the opposite party no.1-doctor it is clear that Bladder found densely adhered to cervix and the same was dissected from the anterior cervix properly, which is also done by the doctor in the interest of -16- patient. In 'D-3' the prescription dated 13.08.2009 wherein the opposite party no.1 doctor has specifically mentioned bad obstetric history. Complaint of excessive bleeding Polymenorrhagava, white discharge uterus bulky and advised mobility restricted. Patient was also having history of pelvic inflammatory disease and bad obstetric history and because of that also there is possibility of VVF which is a known complication after hysterectomy about which the patient and her husband had already been explained by the opposite party doctor.
25. It is very pertinent to mention here that the doctor advised the patient to live on catheter support for some time and to follow precaution such as not to lift weight and restricted mobility. But the patient still ran here and there i.e. firstly Indore, Jalgaaon and Pune just after the operation particularly when in MY Hospital also the doctors advised for VVF repair after three months. From the medical literature as referred above, it is clear that the said problem meaning thereby fistulas automatically close within 4 to 6 weeks.
26. Hon'ble Supreme Court in Jacob Mathew Vs State of Punjab & Anr III (2005) CPJ 9 (SC) has held that true test for establishing medical negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. The accident during the -17- course of medical or surgical treatment has a wider meaning. Ordinarily an accident means an unintended and unforeseen injurious occurrence, something that does not occur in the usual course of events or that could not be reasonably anticipated.
27. Hon'ble Supreme Court in Martin F D'Souza Vs Mohd. Ishaq I (2009) CPJ 32 (SC) has held that simply because the patient has not favorably responded to a treatment given by the doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of Res Ipsa Loquitur. It is further observed that therein that sometimes despite best efforts the treatment of a doctor fails and the same does not mean that the doctor or the surgeon must be held guilty of medical negligence unless there is some strong evidence to suggest that the doctor is negligent.
28. Recently the Hon'ble Supreme Court in Harish Kumar Khurana (Dr.) Vs Joginder Singh & Ors. II (2022) CPJ 43 (SC) has held that 'To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered. The negligence alleged should be so glaring, in which event the principle of Res ipsa loquitur could be made applicable and not based on perception.
-18-29. In the case in hand, apart from the allegations made in the complainant in the complaint and affidavit filed, there is no other medical evidence tendered by the complainant to indicate negligence on part of the doctor, who had explained her position relating to the medical process supporting by medical literature and affidavit to explain that there was no negligence. Even otherwise from the medical literature it is very well established that VVF is known complication after hysterectomy and more particularly in those patients who had bad obstetric history which is in the present case also. The complainant failed to produce any evidence or any medical expert report to establish that VVF was developed due to negligence of the doctor. If the problem persists after operation then it cannot be said that it is because of negligence of doctor.
29. It is also pertinent to mention here that Dr. R. K. Shimpi of Pune who repaired the VVF had given a certificate dated 30.03.2010 (C-7) in which he has mentioned that "This is to certify that Ms. Archana Sanjay Chourasia was under my treatment for VVF. She was admitted in Ruby Hall Clinic, Pune on 29.12.2009 and underwent repair of the VVF with Bil D.J.Stenting. She was discharged on 07.01.2010. The previous discharge card shows that she had undergone Hysterectomy in Khandwa and was evaluated for urinary leak and treated for VVF at Sanjeevni Nursing Home, Indore and at Jalgaon respectively." However, in the said certificate, he has -19- not given any opinion or finding that VVF occurred due to negligence in performing hysterectomy by the operating surgeon.
30. In view of the above discussion we find that the opposite party no.1-doctor has not committed any negligence or deficiency in service in treating/operating the patient. The District Commission has considered all the aspects and evidence available on record and passed a well-reasoned order. We do not find any illegality or perversity in the impugned order. Accordingly it is maintained.
31. In the result, the appeal being devoid of any merit is hereby dismissed. No order as to costs.
(A. K. Tiwari) (Dr. Srikant Pandey) Presiding Member Member