State Consumer Disputes Redressal Commission
Global Hospital Private Limited vs Harini Karkera on 3 October, 2019
[A/15/999]
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
FIRST APPEAL NO.A/15/999
1.GLOBAL HOSPITALS PVT LTD
6-1-1040/1 to 4, Lakdi-Ka-Pul
Hyderabad-500 004, Andhra Pradesh
2.GLOBAL HOSPITALS SUPER
SPECIALITY AND TRANSPLANT CENTRE
3.DR.SUNITA PAWAR, GYNAECOLOGIST
Nos.2 & 3 at GLOBAL HOSPITALS SUPER
SPECIALITY AND TRANSPLANT CENTRE
35, Dr.E.Borges Road
Hospital Avenue, Opp.Shirodkar High School
Parel, Mumbai-400 012 ...........Appellants
Versus
1.HARINI KARKERA
Arpita CHS, A Wing, 201, 2nd floor
R.T.Road, Dahisar West
Mumbai 400 068
2.Dr.K.Ravindranath
Chairman & Managing Director
Nos.1&2 at 6-1-1040/1 to 4, Lakdi-Ka-Pul
Hyderabad-500 004, Andhra Pradesh
3.Mr.Rajiv Katoch
GM-In-Charge, Global Hospitals
Mumbai
GLOBAL HOSPITALS SUPER SPECIALITY
AND TRANSPLANT CENTRE ........... Respondents
1
[A/15/999]
35, Dr.E.Borges Road
Hospital Avenue, Opp.Shirodkar High School
Parel, Mumbai-400 012
BEFORE:
USHA S.THAKARE, PRESIDING JUDICIAL MEMBER
DR.S.K.KAKADE, MEMBER
Advocates:
For Appellants: Advocate Dr.G.N.Shenoy
For Respondents: Advocate Ms.Siddh Vidya
ORDER
Per Dr.S.K.Kakade, Hon'ble Member
1. Being aggrieved by the order in the Consumer Complaint No. CC/13/168 passed by the Learned District Consumer Disputes Redressal Forum, Central Mumbai, dated 4th July 2015, partly allowing the complaint, directing opposite parties no.1, 3 and 5 to pay Rs.999/- towards health check-up charges and Rs.20,665/- towards operation charges with interest at the rate of 9% per annum from the date of filing complaint till realization; the present appeal has been preferred by the original opponents no.1, 3 and 5. By this appeal the appellants have challenged validity and legality of the judgment and order passed by District Consumer Forum.
2. Facts necessary for deciding this appeal are as under, Respondent in this appeal, original complainant Ms.Harini Karkera, 42 years old lady engaged as public servant with Securities and Exchange Board of India (SEBI) and resident of Dahisar (West), Mumbai, visited opposite party, Global Hospital on 30th March 2013 for health check-up. Health check-up package specially offered by the hospital to employees 2 [A/15/999] of SEBI at discounted rate of Rs.999/- , on the occasion of women's Day. As per the check-up package, complainant underwent various investigations and at the end PAP smear test was done. After the PAP smear test, by afternoonthere was bleeding from her vagina. The bleeding was not getting controlledby using packs and hence she was referred to Gynaecologist in the hospital. Dr.Virkud, the Gynaecologist after examining complainant at 2:00 p.m., diagnosing as vaginal laceration immediately decided to operate, putting stitches to laceration to stop the bleeding. She was taken to operation theatre at around 2.10 pm and the operation lasted up to 4.30 pm. Dr.Sunita Pawar, OP no.5, Gynaecologist, performed the operation. Expenditure incurred for the operation was Rs.20,667 /-(Rs. Twenty Thousand Six Hundred Sixty Seven Only) and the complainant was discharged next day. Since complainant was operated unexpectedly after the test being done, she had to stay in the hospital and so she missed important examination of SEBI. The complainant filed consumer complaint in District Consumer Disputes Redressal Forum, Central Mumbai and prayed for apology from the hospital, reimbursement of treatment expenditure and totally Rs.6 Lakh towards mental trauma, loss of professional, personal and marital life, and Rs.4,00,000/- as punishment, punitive costs. All five opposite parties opposed the complaint and filed written statements. They denied all allegations of medical negligence and deficiency in service. Since learned District Consumer Forum allowed the complaint partly and awarded compensation, the appellants, original opposite parties (no.1, 3 and 5) filed appeal at this State Consumer Commission against the order of District Consumer Disputes Redressal Forum.
3. Considering the rival contentions of both parties, submissions made before us, considering record and scope of the appeal, following points 3 [A/15/999] arise for our determination and our findings thereon are noted against them for the reasons given below:
POINTS:
Sr.No. Point Findings
1. Whether the respondent-original complainant No
proved that there was deficiency in service/ unfair trade practice by the appellants-opposite parties?
2. Whether the order of District Forum is correct, just No and Legal?
3. Whether the Appellant is entitled for No compensation?
4. What Order? As per the final order REASONS:
4. As to POINT No.1 Deficiency in service/ Unfair trade practice.
Advocate for appellants submitted that appellants floated scheme of health check-up especially for women, on the occasion of Women's Day, that was communicated to women employee of s bi an email. Page 274. The respondent was given an appointment on 30th March 2013 for this health check-up. Page
275. Being woman, PAP smear test to rule out the cancer of Cervix, was the most important test. The respondent was examined by doctors in the hospital, on speculum examination, a vaginal laceration on the right side was found. Notes on case paper, 357, show that there was bleeding from the laceration and the patient was not cooperative. The Gynaecologist was informed, who after speculum examination of vagina, decided to suture the laceration. Consent and informed consent was obtained- pages 375, 376. Suturing of laceration was 4 [A/15/999] done under proper anaesthesia by Dr Sunita Pawar, OP no.5. Operation notes on page 380. On the next day, 31st March 2013 complainant was discharged, discharge card pages 392- 393.
5. Advocate for appellant invited our attention to medical literature submitted, pages 402 to 415. That in a nutshell gives scientific medical information that right sided vaginal tear is always post coital, after forceful sexual intercourse. The referred medical literature and articles are as follows A. Manohar R.Kavyashree G., "Postcoital Vaginal Tear- a rare life threatening emergency". Journal of Evolution of Medical and Dental Sciences 2013, Vol 2. Issue 40, October 07, page 7637-7639.
"It has been reported that the vaginal tears are located most frequently in the posterior and lateral walls and in the vault of vagina, often in the right than the left lateral wall. Geist reported that up to 75 % of women in emergency department with vaginal lacerations require repair"
B. Shashidhar Boraiah, Sheela S.R. and Krishna Shetty M.V., " Post Coital Fourth Degree rectovaginoperineal tear: A rear Case report"
International Journal of Pharmaceutical Sciences and Research, Ijpsr (2012) , Vol 3, issue 11, page 4372-4373 "Non-obstetric vaginal lacerations, are associated with normal sexual intercourse. This laceration is deeper and more extensive, often resulting in significant vaginal bleeding. The condition can be life threatening and requires immediate intervention."
C. Marvin M.Sloin & Others; "Nonobstetric Lacerations of the vagina":
JAOA Vol,106.No.5.May 2006, pages 271-273 "The right fornix is also prone for injury because of slight variations of uterocervical axis. Treatment protocol has been established that 5 [A/15/999] provides organized and systematic approach to non-obstetric related vaginal bleeding"
6. Learned advocate for appellant submitted that, since there was bleeding, suturing of vaginal laceration was the only answer as per the protocol of treatment, page 414 of compilation. After the diagnosis, steps were taken immediately to post the patient for operation, as it was carried out under appropriate anaesthesia, the patient was settled. The complainant was annoyed by unexpected admission in the hospital and the complainant missed important examination and also there was an exam of her kids which was missed. Respondent, original complainant's bill for this operation was paid by insurance company. Learned advocate invited our attention to fact that respondent original complainant has not preferred appeal against the order District Consumer Forum.
7. Learned advocate for the respondent, original complainant, Adv.Siddh Vidya, submitted that as per the email dated 13th March 2013, the complainant decided to opt for the health examination package offered by the opposite parties. She planned for the health examination on 30th March in morning session, so that she can attend Bombay Stock Exchange (BSE) Certification in Financial Markets Examination in afternoon, admit card on page 275. Learned advocate invited our attention to the affidavit of complainant's colleague one, Mr.Bala Krishna in support of the information on examination, page 341-343 and on page 344 the certificate of Mr.Bala Krishna. Advocate alleged that, the complainant missed the examination as she was operated upon as emergency for vaginal laceration with bleeding that was caused by the vaginal examination by the speculum conducted by the doctor. Advocate also argued on the report of PAP smear page no. 319 that mentions as "unstained smears", in which how blood was not seen? Advocate for 6 [A/15/999] appellant explained that unstained means, not processed with chemical staining for actual microscopic examination. The actual report of the PAP smear examination was negative for cancer for which it is screening test. Advocate for respondent and original complainant also alleged that it was due to breakfast served during the health check-up, there was delay in taking patient for operation as before any surgery patient needs to be nil by mouth for 4 to 6 hours. This was deliberately done by the hospital employees so that the actual surgery took place in evening and thus patient had to stay in the hospital and missed most important examination. Another submission by learned advocate for respondent was that when complaint was submitted to the hospital authorities, it was sent to same Gynaecologist for answer, which the complainant received from Dr.Sunita Pawar explaining that there was no negligence. Page 326.
8. Learned advocate for respondent that the opposite parties were negligent in providing breakfast before operation that delayed the operation. There was negligence in admission process as the complainant had to wait for the admission and later on had to remain admitted overnight due to the negligence of the opposite parties. The advocate also submitted that, the respondent did not attend the court personally as she felt humiliated in discussing the reason for the vaginal tear as sexual intercourse. She also objected to the submissions of the advocate of appellant discussing the reasoning of vaginal tear. Also learned advocate for respondent questioned as to why emergency operation performed by the doctors by admitting the patient in hospital. She prayed for dismissal of the appeal.
9. The case appears to be one of "perceived negligence" by opposite parties in which complainant had to face unexpected emergency operation and admission in the hospital when she had planned something else, "appearing for the examination for BSE Financial Market Certification". Considering the submissions of both parties and material on record, we 7 [A/15/999] are of the opinion that, the respondent complainant had tear in her vagina that bled during the PAP smear examination. Since bleeding was alarming, the complainant was admitted and emergency operation of suturing the laceration was done. While treating the complainant, the opposite parties have followed the treatment protocol and thus we don't find any negligence in the treatment as well as no deficiency in service. Hence we answer POINT No.1 as NEGATIVE.
10.As to POINT No.2 Order of District Consumer Disputes Redressal Forum Learned District Consumer Disputes Redressal Forum, failed to understand the causation and natural course of vaginal tears and its serious nature. Also learned Forum could not understand that the opposite parties acted as per the protocol for such lacerations and treated the complainant well. There was no expert medical opinion supporting the complainant's contention as well as no medical literature in support. Still learned Forum came to the conclusion that opposite parties were negligent and there was deficiency in service. Hence we find that the judgment and order passed by learned District Forum was not just, legal and proper. Hence we answer POINT No.2 as NEGATIVE.
11.As to POINT No.3 Entitlement for compensation In view of discussion above, since the opposite parties are not negligent in providing treatment, the complainant is not entitled for any compensation. Hence we answer POINT No.3 as NEGATIVE.
12.As to POINT No.4 What Order?
In view of the discussion above in Point nos. 1, 2 and 3, we pass the order of setting aside the judgment and order of learned District Consumer Forum, Thane and pass further order.
8[A/15/999] ORDER
1. The Appeal is allowed with costs quantified to Rs.10,000/- (Rupees Ten Thousand only) payable by the respondent to appellants.
2. Order passed by the Learned District Consumer Disputes Redressal Forum in consumer complaint no. CC/13/168 against appellants /original opponent nos. 1, 3 & 5 is hereby set aside.
3. Consumer complaint no. CC/13/168 is dismissed against all opponent nos.1 to 5.
4. Free certified copies of the order be furnished to the parties forthwith.
Pronounced Dated 3rd October 2019 [USHA THAKRE] PRESIDING JUDICIAL MEMBER [DR.S.K.KAKADE] MEMBER 9