Document Fragment View

Matching Fragments

 

7. The second opposite party in his lengthy Written Version, reproducing the definition for hernia and other medical treatments, from the Text as well as admitting the operation performed by him, opposed the case of the complainant as follows:-

 

8. The complainant was referred to the first opposite partys hospital by one Dr.Arasakumar, who had been operated upon in 1980 for right inguinal hernia, a known case of hypertension. Since it was an emergency case of Obstructed recurrent right inguinal hernia, he was slated for immediate surgery and after diagnosing, confirming it is a case of Recurrent Inguinal Hernia, without knowing or having what kind of surgery was performed in 1980 for hernia, explaining the complainant about the complication, obtaining consent, operation was taken, which revealed dense adhesions, the testis was found drawn up to the high scrotal position, which is indicated in the Case Sheet itself, which might have had happened, due to the previous hernia repair surgery conducted 18 years ago. The herniorraphy was carried out, the best extent possible though dense adhesions and the high riding testicle posed some problems. Thereafter, post operative care was given, diligently and at the request of the complainant, he was discharged on 30.9.99. When the complainant reported as expected, he was advised to continue the medicine. When the complainant returned with the same complaint, he was advised to get admitted for observation, which he refused and it came to the knowledge later that he had been to Malar Hospital for treatment. Thus, the complainant adopting his own course, unnecessarily tarnished the image of the opposite parties, giving wrong message to Junior Vikatan. The very fact that the second surgery was performed after the gap of 4 months, from the first surgery would indicate, it was not an emergency one, it had not happened due to alleged negligence, said to have been committed by the first and second opposite parties on 27.9.99 and if at all it should have happened due to known complication, for which, none of the opposite parties could be held responsible, the fact being, the occurrence of testicular atrophy is a known complication, and is definitely not the result of the negligence on the part of the surgeon.

After successful operation and treatment, the complainant was discharged on 30.9.99, at his request, as evidenced by Ex.B4, which also picturise the nature of the treatment and procedure adopted by the second opposite party, before at the time of operation and post operatively. It is also specifically stated, that the patient wants to go home, next day and accordingly he was discharged on 30.9.99.

14. The complainant had problem, therefore, he rushed to the hospital on the very next day, some medicines were given, for which, prescription was also given, as admitted by the complainant, while cross examination, but not produced. But after 7.10.99, the complainant has not come to the first opposite partys hospital or the doctors. Thereafter, as pleaded by the complainant, he had been to Malar Hospital and he was operated there on 28.1.2000, discharged from the hospital on 30.1.2000, as disclosed by Ex.A6 and Ex.A9. Ex.A9 would disclose that the complainant had Sinus right inguinal hernia with atrophy right testis, for which, surgery was performed and right testical was removed. According to the complainant, because of the negligence operation conducted by the second opposite party on 27.9.99, Atrophy occurred, resulting removal of right testical, for which, opposite parties should be directed to pay compensation. Thus, the claim was lodged, ended in partial success, which is challenged.

 

15. Hernia is a bulging protrusion of an internal roop of bowel or abdominal contents through a weak opening in the wall, causing rupture of a portion of a structure. The subsequent problem of hernia after operation is generally called Recurrent Indirect Inguinal Hernia, which may occur as reported in Text, at any time from one month to 25 years. In this case, the complainant had hernia problem in 1980, operated, the same problem once again surfaced occurred in 1999, therefore, his problem comes within the meaning of Recurring Indirect Inguinal Hernia, which was properly diagnosed by the opposite parties, as seen from Ex.B4-Case Sheet, which says Recurrent Right Inguinal Hernia for which, surgery was performed.

Therefore, it is not known, how the District Forum has come to the conclusion, that there was negligence on the part of the opposite parties even without properly reading the admissions given by PW1/complainant while he was cross examined by the opposite parties.

17. It is an accepted principle, irrespective of the abstract doctrine of burden of proof, if there are materials to prove the deficiency or negligence from the records produced by either parties, even in the absence of expert opinion, we can fix negligence, on the part of the surgeon, who performed the surgery. In this case, that is not available, to our understanding, after reading the entire documents. As rightly submitted by the learned counsel for the appellants recurring hernia is an accepted complication. This accepted complication should have occurred on its own, not by the negligent act committed by the opposite parties, therefore, for the later part, we require expert evidence, which is absent. Atleast the third surgery performed by the Malar Hospital should disclose, the previous surgery was performed negligently, resulting Atrophy on the right testical, which is also absent. The Literatures brought to our notice, make it abundantly clear, which we need not retype that it is a Recurring Hernia, which is the Certificate given by Malar Hospital as seen from Ex.B12, which reads This is to state that Mr.E.D.Rajan aged 48 yrs was admitted under my care in Malar Hospitals from 28.01.2000 to 31.01.2000 and underwent Surgery on 28.01.2000, for Testicular atrophy with Discharging Sinus, which is one of the possible complication following Herniorrhaphy Surgery. Neither in the Case Sheet maintained by the Malar Hospitals nor in the Certificate given by Malar Hospitals, dated 17.11.2000, they have informed or noted that the recurring inguinal hernia with atrophy had occurred to the right testical because of the negligent operation conducted previously in this case on 27.09.99.