BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD.



FA.No.247/2008 against C.D.No.37/2007, District Forum, KADAPA



Between:



1. Dr.S.R.Francias M.D. D.GO.,

Working in Our Lady of Fatima Hospital,

Porumamilla,

Kadapa District-515 193.



2. Our Lady of Fatima Hospital,

Rep. by its Chief Medical Officer,

Porumamilla,

Kadapa District-515 193. .Appellants/

Opp.parties 1 & 2

And



Moghlal Mahaboob Jan,

W/o.Shafiullah

E.Ramapuram, Kalasapadu Mandal,

Kadapa District. Respondent/

Complainant



Counsel for the Appellants: : Ms.G.Sudha



Counsel for the Respondent. Respondent appeared in person.



QUORUM:SMT.M.SHREESHA, MEMBER.

AND

SRI K.SATYANAND, MEMBER.



THURSDAY, THE TWENTY FIFTH DAY OF JUNE,

TWO THOUSAND NINE



ORAL ORDER: (Per Sri K.Satyanand, Hon'ble Member.)

***

This is an appeal filed by opposite parties before the District Forum assailing its order directing them to pay compensation to the complainant on the ground of medical negligence.

The facts of the case are briefly as follows:

The complainant approached the first opposite party who, it seems, was working as doctor in the second opposite party hospital with a complaint pertaining to some abdominal pain. The first opposite party examined the patient and advised her for surgery to remove the uterus assuring her that she would be cured of her disease after surgery. Accordingly the complainant gave her consent for removal of uterus. The complainant claimed to have paid Rs.15,000/- towards operation charges and readied herself for the surgery. After commencement of the surgery, it is alleged, that the first opposite party called the husband of the complainant and expressed to him that there were some obstacles to remove the uterus as the uterus was covered by some obstacles and demanded further extra charges for clearing those obstacles. She also called yet another doctor by name Dr.Jayarami Reddy of Porumamilla to assist her in the operation. The complainant’s husband allegedly shelled out the additional demand of Rs.7,000/-. Ultimately, the first opposite party declared that the operation was successful and issued a certificate to that effect. The complainant also claimed to have spent Rs.10,000/- towards other expenses as medicines and extra nourishment. The complainant, however, developed a problem of bleeding and even her periods became frequent and erratic. The complainant claimed to have taken this fact to the knowledge of the doctor. She prescribed some medicines; but they did not give any relief. As there was no improvement, she appeared to have become suspicious about the conduct of the surgery and therefore consulted doctors at Medinova and Nizams Institute of Medical Sciences (‘hereinafter referred as ‘NIMS’ for short) at Hyderabad. She alleged that the doctors at both the hospitals orally informed her that the previous treatment was not on proper lines. However, on reference made by NIMS, she underwent clinical diagnostic tests at Tesla Diagnostic Centre and on the strength of the said report, the doctors at NIMS stated that uterus was not removed from the body of the complainant. The report specifically recorded that uterus was normal in size, shape and echo texture endows me trim etc. On the suggestion of elders, the complainant appeared to have switched over to Woodlands Hospitals for treatment by experts there. After thorough examination, the doctors there also revealed that in the previous operation, uterus was not removed and the problem of the complainant was not treated properly. On account of this negligence on the part of the first opposite party, the complainant contended that she suffered mental torture and loss of income from her job as a teacher and nearly spent Rs.3,00,000/- towards medical expenses etc. She, therefore, filed a complaint before the District Forum seeking reimbursement of the medical expenses in a sum of Rs.3,00,000/- and compensation for pain and suffering in a sum of Rs.2,00,000/- besides costs.

Opposite parties filed a common counter denying any negligence on their part. On the other hand, they pleaded several circumstances calculated to disprove the allegation of negligence by saying that she had already undergone treatment for 23 days and only at the end of that unsuccessful treatment that she was advised to undergo surgery. They also maintained that before advising surgery, first opposite party examined and explained to the complainant, the problem of bleeding and the need for Hysterectomy and various modalities of treatment, both medical and surgical. In the first instance, she visited the hospital on 6-8-2005 with various problems. She was put on oral medicines for 10 days advising her properly the time schedule of medicines etc. On 16-8-2005 she again came to the first opposite party with the same problem complaining that she did not get any relief for those medicines. Then the opposite party claimed to have prescribed other medicines for yet another period of 15 days but before the lapse of 15 days, on 28-8-2005, the complainant contacted the first opposite party on phone and informed her that she did not get any relief and therefore was ready to undergo surgery. In those circumstances ultimately on 29-8-2005, the complainant came to the hospital of the second opposite party along with her husband in order to undergo surgery of Hysterectomy and thereupon the first opposite party took the consent of her husband and thereafter conducted the surgery with the assistance of another doctor by name, Jayaram Reddy. However, during the course of the surgery, they discovered certain features as

i) Extensive thickening of bowels, which are adherent to the posterior part of the uterus and cervix.

ii) Enlarged ovaries (Chocolate cist)

iii) Thickening of posterior and Lateral Ligments.

iv) Culde-Sac-obliterated

As the bowels were thickly adherent with uterus, it was deemed not possible to remove the uterus and the said fact about the difficulties present in the removal of uterus were informed to the complainant’s husband and in those circumstances, his consent was taken for partial Hysterectomy. Accordingly the first opposite party removed partial uterus which is called as partial Hysterectomy. They, however, did not remove the enlarged ovaries as they became adherent with bowels. Opposite party no.1 claimed to have taken a decision not to remove the uterus totally due to adverse conditions apparent during the course of the surgery. She claimed to have avoided total removal in order to avert

a) Injury to bowel

b) Ureter damage

c) Bladder injury

She also maintained that partial Hysterectomy was permissible in cases of severe endometriosis, cesarean section etc. After completion of the surgery, the complainant remained in the hospital till 3-9-2005 under the care of first opposite party. She was discharged on 3-9-2005 on her request and at the time of her discharge, she was in a condition of moving here and there and attending to her normal works. She again came to the hospital on 5-9-2005 for removal of stitches and the same was done by the first opposite party and at the time the wound was found healed and she was alright. Again on 13-9-2005, she came to the hospital complaining that she was suffering with back pain for which the first opposite party claimed to have given treatment. The first opposite party also claimed to have advised the complainant at the time of discharge that she would do well to get a check up in higher hospitals to know the reason for bowel thickening and to have regular pop smear test to rule out malignance. Thus she claimed to have bestowed full attention and care to the patient and also claimed to have sent the partially removed uterus measuring 4x6x4 cms., to Chaitanya Diagnostics Services for biopsy and after examining the same, the said centre gave a report that the problem of complainant was Adinomyosis & Fibroid Uterus. She emphatically denied the allegation of the complainant that her uterus was not removed at all. She also disputed the quantum of fees paid to her and on the other hand stated that she received Rs.7,160/- only for which she claimed to have passed a receipt. She also pointed out that neither Medinova nor NIMS hospitals have faulted her treatment in their medical transcripts and on the other hand, if they really formed such an opinion, they would have expressed the same in the discharge summaries which they did not do. The proper test in order to know whether the uterus was removed partially or in full was ‘Diagnostic Laproscopy’ but not the test of ultra sound scanning. The complainant instead of resorting to the said test opted for ultra sound test by Tesla Diagnostics, Hyderabad and obtained a wrong report from the said centre which might have given such a report mistaking the cervix that was left intact which became hypertrophied as uterus. She challenged that even at this stage the factum of removal of partial uterus could be found by referring the complainant to Diagnostic Laproscopy test. She denied the allegation of medical negligence and requested the Forum to dismiss the complaint with costs.

In support of her case, the complainant filed her own affidavit by way of chief examination and tendered herself for cross examination as well. She also examined the Radiologist/technician of Tesla Diagnostic Centre and she too was cross-examined. By way of documentary evidence, the complainant relied upon Exs.A1 to A12 of which Ultra sound requisite form issued by NIMS was marked as Ex.A6 and the corresponding original ultra sound whole abdomen report issued by Tesla Diagnostic Centre as Ex.A5 both of which figure prominently. Opposite parties examined the first opposite party doctor as R.W.1 through affidavit as also by tendering herself for cross examination. They also relied upon documentary evidence marked as Ex.B1, the biopsy report, issued by Chaitanya Diagnostic Services dated 3-9-2005 covering examination of the alleged removed part of the uterus.

On a consideration of the evidence adduced by both sides, the District Forum returned the finding of negligence against the opposite parties and awarded compensation of Rs.85,000/- and Rs.14,000/- towards mental agony as also costs of Rs.1,000/- marked to be paid by opposite parties 1 and 2 jointly and severally.

Aggrieved by the said order of the District Forum, the opposite parties filed the present appeal more or less on the same grounds that they unsuccessfully urged before the District Forum and commented that it failed to appreciate the grounds of defense. In addition, she also criticized on the so called infirmities in the case of the complainant by saying that she failed to file the medical prescriptions of the treatment she had allegedly undergone at Vellore and other places. It is also urged that she did not examine any specialist to prove her case. She questioned the quantification of the medical expenses and the compensation for mental agony awarded by the District Forum while saying that there was no proper data for the same.

Heard the counsel for the appellants and the counsel for the respondent filed written arguments.

The points that arise for consideration are i) Whether the finding of negligence against opposite party No.1 is justified?

ii) Whether the finding of liability against opposite parties 1 and 2 is correct?

iii) Whether the quantification of relief granted to the complainant is reasonable?

iv) Whether there are any good grounds to interfere with the order of the District Forum?

1. This is no doubt a clear case in which an expert as such was not examined in support of the case of the complainant. The complainant however tried to establish her case through not only her evidence but also the admissions culled out from the evidence of the opposite parties. When the evidence as a whole is capable of clinchingly establish negligence then the requirement of examining an expert can be hardly underscored. Even otherwise the deposition of P.W.1 also answers the description of the evidence of an expert. Therefore, this is not a straight case of the complainant’s claim suffering from the vice of non examination of an expert. P.W.2 clearly stated in her cross examination as follows:

‘Because the uterus was normal in size as mentioned in Ex.A5. I

Feel that there was no hysterectomy held on the patient, namely,

Mahaboob Jan”.

Then this Commission is given to scan the evidence available on record to judge whether the finding of negligence given by the District Forum is tenable or not. In that process the affidavit evidence of the complainant is taken up as the first limb of the discussion. The complainant examined herself as P.W.1 and her deposition could not be shaken to any meaningful level by the first opposite party who had ample opportunity to cross examine P.W.1. She gave a graphic account of the whole episode that ultimately driven her to go from one hospital to the other in search of proper medical treatment for the ailment the worsening of which was all the more compounded by the handling of the same in the early stages by the opposite party No.1. In support of her theory that the very operation was a myth*, she cited the contradictory versions of the opposite party No.1 who claimed to have conducted abdominal Hysterectomy, as per Ex.A2, Medical certificate, issued by first opposite party herself on 16-9-2005 only to change it at a later point of time as partial sub total Hysterectomy which she professed to have conducted on the complainant. In other words she ate her own words by changing the version from abdominal Hysterectomy into partial Hysterectomy which came to be put up in defense in this case through her counter as also her own deposition as R.W.1. But the complainant could successfully prove that her uterus was not removed as claimed by the first opposite party and in that regard she relied upon the evidence in Ex.A5 and also that of P.W2. Ex.A5 is the report given by Tesla Diagnostics not at the instance of some body at random but at the instance of the NIMS which made a reference no doubt generally requiring the complainant to go in for ultra sound sonography of the whole abdomen as is amply evident from the reference specifically issued by NIMS as per Ex.A6. Therefore, Ex.A5 cannot be undermined as being brought up as obviously the test there in had come to be conducted on reference by NIMS as per Ex.A6. The first opposite party could not produce any material to prove that the judgement of NIMS in making a reference for ultra sound test was unwise. The alternative theory of diagnostic laproscopy as being the essential test in order to damnify Ex.A5 is surely an after thought as she herself admitted her total imperviousness to conduct proper tests before embarking upon a surgery as is evident from her own cross examination wherein she admitted as follows:

‘It is true that I have not conducted cytology test. It is

true that the said test is required and essential before

conducting the surgery. There is no availability of cytology

and pap smear in our hospital’.

She, however, added that she advised the patient to undergo those tests but the complainant refused. This is most unbelievable as no doctor would proceed to operate upon the patient when the patient shows disinclination to undergo the essential tests that are pre-requisite for commencing such a process. Even if such yielding were to be true, that itself proves medical negligence as after all in such cases the doctors cannot afford to be malleable. In order to disprove the contention of the complainant or prove that she had done partial removal of uterus, she tried to place any amount of reliance upon Ex.B1, the report from Chaitanya Diagnostic Centre, allegedly issued on an examination of the removed part of the uterus ostensibly for ruling out cancer which she herself admitted in her deposition. It is pertinent to point out here that the entire medical record shows the complainant being 32 years old but curiously Ex.B1 shows her age as 42 years and on the top of this she herself gave prevaricating versions in the cross examination in the following terms:

‘I am not able to say that Ex.B1 relates to the complainant. Again

the witness says that Ex.B1 relates to the complainant”

Though she claimed to have sent a letter to the diagnostic centre that issued Ex.B1 she withheld such a letter which could have given some credibility to Ex.B1 by ruling out the possibilities of its fabrication at a subsequent point of time, and thereby avoiding such a comment on behalf of the complainant. There are many more admissions by opposite party No.1 which clearly make out circumstances supportive of the theory of negligence in this matter. In her cross examination, she stated:

‘I have maintained the case sheet in this case …….

but the case sheet is not filed, the discharge summary

is also not filed. I have not filed the reference letter sent

to Chaitanya Diagnostic Center, Kadapa’.

At the fag end of her chief examination, she clearly admitted as follows:

‘It is true that we have not informed about the operation of

Hysterectomy’.

The last mentioned fact of her admission that she had not informed the fact of operation of Hysterectomy to the complainant is all the more fortified by the circumstances that she herself admitted in the cross examination to the following effect:

‘I have not filed the consent letter taken from the husband of the

complainant though it is obtained. The complainant’s husband put

his signature on the consent letter’.

Even while admitting that Hysterectomy was a major surgery, she did not show any evidence as having conducted all the necessary tests like ultra sound scan, x-ray, cytology and pap smear test etc. She even claimed to have administered anesthesia without any expert in that field, this fact also indicates an element of rashness. It is rather funny to note that after opening the abdomen for operation, she called some other doctor who was obviously less qualified, taking so much liberty with time during the course of an ongoing operation. Thus her own evidence is ridden with contradictions probablizing the tenuity of the evidence on the whole, of opposite parties. Thus we do not see any infirmity in the finding of the District Forum holding opposite party No.1 guilty of negligence.

2. When once the District Forum comes to the conclusion that the doctor attached to the hospital was negligent in the profession, the liability vicariously extends also to the hospital for employing such a doctor. This is a very well settled proposition of law and the liability of the opposite parties 1 and 2 cannot be nothing else than joint and several and the District Forum was right in making both the opposite parties liable jointly and severally.

3. The District Forum was very moderate in quantifying the relief. They quantified the actual medical expenses by relying upon the evidence of medical bills marked as Ex.A1. Ex.A1 comprises as may as 13 medical bills and the computation was done by the District Forum basing on them and we do not feel it necessary to do the exercise all over again. So far as mental agony is concerned, the Forum was very reasonable in its approach and that is equally flawless.

4. Thus we do not see any infirmities in the order passed by the District Forum. In other words there are no merits in the appeal.

In the result the appeal fails and is accordingly dismissed with costs in a sum of Rs.3,000/-. Time for compliance with the order of the District Forum is six weeks from the date of receipt of this order.

The statutory deposit, if any, made by the appellants shall be transmitted to the District Forum concerned for disbursement in conformity with its orders as confirmed by this Commission.



MEMBER.

MEMBER

Dated 25-6.2009