`                                                                                                                                 Date of Filing:     30.10.2017

                                                                                                                                 Date of Disposal:  11.07.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR

PRESENT: THIRU.   J. JUSTIN DAVID., M.A., M.L.                    .…. PRESIDENT

                   TMT.      K.PRAMEELA. M.Com.,                                …..MEMBER-I

                   THIRU:  D.BABU VARADHARAJAN., B.Sc., B.L.,       ….MEMBER-II

CC.No.44/2017

THIS THURSDAY THE 11^th    DAY OF JULY 2019

 Mrs.P.Kalavathy,

W/o, Palani Velu,

No.4/55 (New No.4/59) Mettu Street,

Vichoor Village and Post,

Ponnery Taluk,

Thiruvallur District.                                                                 …… Complainant.

                                                                   //Vs//

1.Dr.L.Priya. MS.OG.FI,

    AAKASH HOSPITAL,

    No.393/1, Thiruvottriyur High Road,

    Chennai -600 019.

2.The Medical Officer,

    AAKASH HOSPITAL,

    M/s.Akash Hospital,

    No.393/1, Thiruvottriyur High Road,

    Chennai - 600 019.                                                        ……...Opposite parties

This complaint is coming upon before us finally on 21.06.2019 in the presence of Mr.A.R.Poovannan, Counsel for the complainant and M/s.AAV Partners Counsel for the opposite parties and having perused the both side’s documents and evidences, this Forum delivered the following:

ORDER

PRONOUNCED BY THIRU. J.JUSTIN DAVID, PRESIDENT.

This complaint has been preferred by the complainant U/S-12 of the Consumer Protection Act-1986 against the opposite parties for seeking direction to refund a sum of Rs.75,000/- towards the hospital expenses made by the complainant for treatment and to pay  a sum of Rs.5,00,000/- towards compensation for causing mental agony to the complainant due to the deficiency in service on the part of the opposite parties and to pay a sum of Rs.10,000/- towards cost of litigation to the complainant.

2. Brief Averments in the complaint filed by complainant is as follows:-

   The complainant went to the 2^nd opposite party hospital in the 3^rd week of September 2015 with complaint of abdomen pain and passing clot changing 5 or 6 pads per day pain during micturiton and mensuration with both leg pain and back pain.  When the complainant visited the 2^nd opposite part’s hospital, the opposite party explained all the medications and the consultant doctor advised the complainant for checkup and treatment. On the advice of the opposite parties the complainant was admitted as inpatient in 2^nd opposite party’s hospital on 28.09.2015. The opposite party was not prescribed with any medical therapy or hormone therapy and was straightaway advised for hysterectomy. As per the practice and procedure, in case where hysterectomy is performed D &C has to be done prior to hysterectomy as a routine with a view to mould the procedure according to the findings of the D&C if necessary.  The 1^st opposite party has not chosen to perform any D&C procedure and straightaway gone for the removal of uterus and the opposite parties without any proper consent removed the uterus and also the opposite parties was not informed the complainant about the surgery done and its effects.  The complainant spent more than a sum of Rs.75,000/- for treatment.  Because of the removal of the uterus, the complainant gained more weight and she is not able to do any work, even after the treatment there is no complete improvement in pain.  Because of the opposite parties deficiency in service the complainant is suffering mental and physical hardship.  Therefore the complainant on 07.09.2017 issued legal notice to the 1^st opposite party for compensation and the 1^st opposite party by their letter dated 18.09.2017 stated that “as per medical protocol, the opposite party cannot be held liable as patient had failed to come back for review”. There is gross medical negligence and deficiency in service on the part of the opposite parties. Hence this complaint.

3. The brief contention of written version of the  opposite parties  is  as follows:-

The complainant had approached the opposite parties on 28.09.2015 with complaints of abdominal pain for one week and also had severe pain on the day she had approached. The complainant was suffering from Excessive bleeding per vagina which caused changing of 5 or 6 pads per day for the past 10 and 15 days and pain while passing urine for past one week, menorrhagia & dysmenorrheal for past four month, having obstetric history of P3L3 –vaginally delivered and there was also a history of sterilization 22 years back and also done cholecystectomy 15 years back and there was no diabetes Mellitus/Hypertension found.  The complainant had soft, diffused tenderness all over the abdomen, suprapubic region and tubectomy scar.  As per vaginal examination showed bulky, tender uterus and Ultrasound showed Adnemomyosis Uterus with endometrial thickness around 4.08 mm which small, renal calculus. “Adenomyosis is a condition in which the inner lining of the uterus (the endometrium) breaks through the muscle wall of the uterus (the myometrium).  Adenomyosis can cause menstrual cramps, lower abdominal pressure, and bloating before menstrual periods and can result in heavy periods.  The condition can be located throughout the entire uterus or localized in one spot”.  As the endometrium was thin (4.8mm) and there were no features of uterine malignancy, endometrial aspiration was deferred and as per treating the condition of adenomyosis she was well explained about the condition and hysterectomy was suggested and planned to be performed on the complainant. “Hysterectomy is the surgical removal of the uterus.  In a total hysterectomy, the uterus and cervix are removed.  In some cases, the fallopian tubes and ovaries are removed along with the uterus (called hysterectomy with bilateral salpingo-oophorectomy).  The type of hysterectomy performed depends on the reason for the procedure.  In all cases, menstruation stops and women lose the ability to bear children”.  The total Laparoscopic Hysterectomy was performed by retaining the ovaries which were found normal inside the complainant on 01.10.2015 after obtaining written consent from the complainant and her husband. The post-operative care was duly given and the complainant was discharged 04.10.2015 and at that time, the complainant was conscious, oriented, walked comfortable with healthy would.  The complainant was prescribed with medication for five days and also was advised to return for review after five days for stapler/suture removal and regular follow-up thereafter, but the complainant never came back to the opposite parties for regular follow up after suture removal on 10.10.2015.  The treatment of choice for Adenomyosis is Hysterectomy and not Dilation & Curettage (D&C) or hormonal treatment. Hornomal treatment can be given for other causes of excess bleeding per vagina like dysfunctional uterine bleeding and the treatment for progesterone which could stop bleeding can be given for a short period as temporary basis for those who want to postpone the surgery for other social or financial reasons, but in this case the detailed medical opinion was given to the complainant and from her husband the surgery was carried out.  The Histopathology report has revealed Adenomyosis with thin endometrium - clinically diagnosed, and since there was history of failed medical management total laparoscopic hysterectomy was done retaining the ovaries of the complainant only after obtaining the consent of the complainant and from her husband. The 1^st opposite party had carried out – preoperative blood investigations, chest X –Ray, ECG and Cardiology fitness was also obtained and further the PAP smear report came normal with hemorrhagic background.  The opposite party has followed medical protocol and has performed proper diagnosis and surgery on the complainant. The 2^nd opposite party’s hospital is one of the very few institutions providing multi-specialty healthcare services and excellent laparoscopic surgical care in Chennai, the 2^nd opposite party’s hospital is an ISO 9001:2008 certified organization, with a passionate team of experienced doctors and surgeons and now aiming to achieve NABH accreditation very soon.  As per settled law a professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise the said skill with reasonable competence”.  In the instant case the opposite parties have possessed the required skill and had also administered timely treatment using the said skills. Since the opposite parties have not been deficient in their services as there is no cause of action for the instant complaint and the opposite parties are not liable to pay any sum of money, more so the amounts mentioned in the prayer of the complaint, as the entire case of the complainants is based on assumptions and presumption and with intention to extract money from the opposite parties the complaint deserves to be dismissed in limine.

4. In order to prove the case, on the side of the complainant, the proof affidavit submitted as his evidence and Ex.A1 to Ex.A12 were marked.  While so, on the side of the opposite parties, the proof affidavit submitted as his evidence and Ex.B1 and Ex.B2 were marked and oral argument adduced on both sides. 

5.  At this juncture, the point for consideration before this forum is:-

(1) Whether there is any medical negligence and deficiency in service on the part of the opposite parties? 

(2) Whether the complainant is entitled for refund of Rs.75,000/- from the opposite parties?

(3) Whether the complainant is entitled for compensation and cost?

(2) To what other reliefs, the complainant is entitled?

6. Point Nos.1 to 3:-

The case of the complainant is that the complainant went to the 2^nd opposite party’s hospital in the 3^rd week of September 2015 with complaint of abdomen pain and bleedings and she was admitted as inpatient at the 2^nd opposite party’s hospital on 28.09.2015 and the opposite parties straightaway advised for Hysterectomy instead of performed D & C.  The opposite parties without consent of the complainant removed the uterus.  Because of the removal of uterus, the complainant gained more weight and the complainant is not able to do any work.  Therefore the opposite parties have committed medical negligence and deficiency in service and therefore the complainant filed this complaint before this forum.

7. The opposite parties contended that the complainant had approached the opposite parties on 28.09.2015 with abdominal pain and excessive bleeding per vagina.  The 1^st opposite party had carried out preoperative blood investigations, Chest X-Ray, ECG and Cardiology fitness, PAP smear report and the opposite parties has followed medical protocol and has performed proper diagnosis and conducted surgery to the complainant. The Histopathology Report has revealed Ademonyosis with thin endometruim – clinically diagnosed and since there was history of failed medical management total laparoscopic hysterectomy was done retaining the ovaries of the complainant only after obtaining the consent of the complainant and from her husband.  The 2^nd opposite party is one of the very few institutions providing multi-specialty health care services and excellent laparoscopic surgical care in Chennai, the 2^nd opposite party’s hospital is an ISO 9001:2008 certified organization with a passionate team of experienced doctors and surgeons.  The opposite parties have possessed the required skill and had also administered timely treatment was given to the complainant.  Therefore there is no medical negligence on the side of the opposite parties.

8. On perusal of the evidences and documents filed by both the parties, this forum finds that the complainant namely P.Kalavathy approached the 1^st opposite party on 28.09.2015 with complaints of abdominal pain and was suffering from excessive bleeding per vagina.  The complainant was admitted in the 2^nd opposite party’s hospital as inpatient on 28.09.2015 and the surgery was done on 01.10.2015.  It is admitted by both the parties that the total Laparoscopic Hysterectomy was done on 01.10.2015 by the 1^st opposite party.

9. The complainant alleged that the opposite parties straightaway gone for removal of uterus instead of performed D & C.  The complainant further alleged that the opposite party without any proper intimation and consent for the removal of uterus of the complainant.  On the other hand, the opposite parties contended that the complainant was suffering from excessive bleeding per vagina, having menorrhagia & dysmenorrheal for past 4 month, having obstetric history of P3L3- vaginally delivered and there was also a history of sterilization 22 years back and also done cholecystectomy 15 years back and there was no Diabetes Mellitus/Hypertension found, had soft diffused tenderness all over the abdomen, suprapubic region and tubectomy scar. The opposite parties also filed Ex.B1 and Ex.B2 documents contain 1 to 70 pages.  Ex.B1 is the copy of the consent form and case sheet and Ex.B2 is the copy of discharge summary.  The opposite parties obtained consent for admission on 28.09.2015 and the complainant also given consent for ANAESTHESIA on 01.10.2015.  Further, the complainant has also given consent for surgery on 01.10.2015.  The complainant’s husband namely N.Pazhanivalu also signed as witness in the consent letter for surgery dated 01.10.2015.  The opposite party filed all the consent form signed by the complainant along with Ex.B1.  Therefore the allegation that the surgery was done without proper intimation to the complainant and without getting consent from the complainant cannot be accepted.

10. The opposite parties before conducting the surgery on the complainant they have done all the preoperative blood investigation.  The 1^st opposite party also carried out pre-operative blood investigations, Chest X-Ray, ECG and Cardiology fitness and also obtained PAP smear report.  The opposite party also filed medical records of the complainant to show pre-operative blood investigations.  The opposite party also filed inpatient records, transfer information sheet, investigations chart and pre-operative check list to show that they have taken necessary investigation before conducting the surgery.  The surgery was done on 01.10.2015 by the 1^st opposite party and the 1^st opposite party also filed operation notes to prove that they have done the surgery with due care and caution.  Thereafter the opposite party’s hospital has given necessary treatment to the complainant till the date of discharge and proves the same the opposite party filed the medical records, which is enclosed in Ex.B2 and the patient was discharged on 04.10.2015.  The last page of Ex.B2 contains the discharge summary.  As per discharge summary the complainant admitted as inpatient on 28.09.2015.  Ex.A8 is the discharge summary and the same also as filed by the opposite party in Ex.B2.  As per Ex.A8 the complainant was admitted as inpatient on 28.08.2015 and surgery was done on 01.10.2015 and discharged on 04.10.2015.  The total laparoscopic hysterectomy was done on 01.10.2015 and the complainant was advised to take some medicine and also was advised to return for review after five days, but the complainant has not gone for review to the 2^nd opposite party’s hospital.  Further the opposite party advised the complainant for regular follow up, but the complainant has not went to the opposite party’s hospital for regular follow up after suture removal on 10.10.2015.  Therefore the opposite party has taken necessary care before surgery and also taken enough care after surgery till discharge of the patient.  But the complainant has not contacted the opposite party for review as requested by the opposite parties.

11. The complainant alleged that after became removal of uterus the complainant was unable to do any work and overweight.  For the above said allegation, the complainant has not filed any documents. Further there is no medical expert opinion to prove that the opposite parties committed medical negligence.  The surgery was done on 01.10.2015 and the complainant was discharged on 04.10.2015 and thereafter the complainant through her counsel issued a legal notice on 07.09.2017 for first time alleged that the opposite party has committed medical negligence.  Ex.A11 is the copy of legal notice and the same was received by the 1^st opposite party and sent a reply to the same which has been marked as Ex.A12.  Between the periods of about two years from 05.10.2015 to 06.09.2017 there is no document to show that the complainant has approached any other doctors for further treatment. If really the complainant suffered any health problem due to removal of uterus the complainant might have been approached other hospital for remedy.  But there is no proof to show that she approached other hospital.  Hence the above allegation made by the complainant in the complaint is unsustainable.  Further the learned counsel for the opposite parties argued that the 1^st opposite party who conducted surgery is a qualified person and the 2^nd opposite party’s hospital having all equipment to conduct surgery and there is no negligence or deficiency in service on the side of the opposite parties.  The complainant has not disputed the same.  The 1^st opposite party is a qualified doctor who conducted surgery and the 2^nd opposite party is a multi speciality hospital.  Hence there is no negligent and deficiency in service on the part of the opposite parties and therefore the complainant is not entitled for refund of Rs.75,000/- and also not entitled for compensation and cost.

12. Point No.4:-

In the result this complaint is dismissed.  No costs.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open forum on this 11^th July 2019.

           -Sd-                                                  -Sd-                                              -Sd-

      MEMBER-II                                     MEMBER-I                                   PRESIDENT

List of document filed by the complainant:-

List of document filed by the opposite parties:-

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MEMBER-II                                           MEMBER-I                                        PRESIDENT