Kerala

Idukki

CC/327/2016

Rosamma Vattakkunel - Complainant(s)

Versus

Dr.K P Raman - Opp.Party(s)

27 Jun 2023

ORDER

DATE OF FILING : 22.11.2016

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  27^th  day of  June,  2023

Present :

SRI. C. SURESHKUMAR                  PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.327/16

Between

Complainant                                           : Rosamma, W/o. Francis,

                                                                   Vattakkunnel House,

                                                                   Devarupara P.O.,

                                                                   Poochapra, Kuruthikkalam,

                                                                   Idukki.

          (By Advs: M.M. Thomas &Robin Manual)

And

Opposite Parties                                      :  1.  Dr. K.P. Raman, M.B.B.S, DGO,

                                                                    Gynaecologist, Reg. No.4805,

                                                                    Idukki District Co-operative Hospital,

                                                                    Thodupuzha.

           (By Adv: Johnson Joseph)

       2.  The Administrator,

                                                                    Idukki District Co-operative Hospital,

                                                                    P.B. No.32, Thodupuzha – 685584.

                                                                 3.  The Secretary,

                                                                    District Co-operative Hospital Society,

                                                                    P.B. No.32, Thodupuzha – 685584.

                                                                 4. The President,

                                                                    District Co-operative Hospital Society,

                                                                    P.B. No.32, Thodupuzha – 685584

 (Both 3 & 4 by Advs: Shaji Kurian

& Soumin Sebastian)

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This case originates from a complaint filed under Section 12 of the Consumer Protection Act, 1986 (the Act, for short).  Complainant’s case as disclosed from his complaint is briefly discussed hereunder :

 

          Complainant submits that she is a poor house wife.  She is residing along with her husband and children within the limit of this Commission.  1^st opposite party is a reputed                                                                                                   (cont.....2)

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gynaecologist who is working in Idukki District Co-operative Hospital at Thodupuzha.  2^nd opposite party is administrator of the said hospital, 3^rd and 4^th opposite parties are secretary and president of District Co-operative Hospital Society which manages the hospital as such.  From 2015 onwards complainant’s health was deteriorating due to bleeding from uterus.  Though she had sought treatment at Bishop Vayalil Hospital, her condition had not improved. Therefore she had gone to Idukki District Co-operative Hospital for better management and sought treatment of 1^st opposite party who was a reputed gynaecologist having  requisite qualifications.  After consulting the doctor, she was admitted as inpatient, on 18.12.2015 in the hospital.  On 22.12.2015, 1^st opposite party had decided to conduct abdominal hysterectomy and had removed uterus of complainant by an operation.  On 30.12.2015, complainant was discharged from hospital for taking complete rest at her residence, though was experiencing pain in abdomen.  However, after returning complainant had  severe  pain, bouts of high fever and vomiting.  After 3 days of her discharge, that is on 3.1.2016, complainant had again consulted 1^st opposite party and was admitted again upon his advice.  After 2 days  complainant was referred to Muthalakkodam Holy Family Hospital for consultation by uroligist.  Complainant and her husband along with her relatives had gone to Kolencheri MOSC Medical College and consulted Assistant Professor, Dr. Boby John, MS DNB (Uro).  She was admitted in the said hospital.  Upon expert examination by Dr. Boby John, it was revealed that there was right lower ureteral stricture, infected HN urosepsis and acute kidney injury owing to procedure adopted for removing the uterus by 1^st opposite party in District Co-operative Hospital.  Owing to severe injury to kidney and ureters, there was infection also.  An emergency cystoscopy, right RGP, left DJ stenting plus right PCN insertion under GA were done.  Complainant was admitted as inpatient for 10 days and her life was saved.  On 15.1.2016, she was discharged with an advice to admit herself for further surgical procedure.  Complainant alleges that  infection of her kidney and ureters was due to injury inflicted in the course of surgery performed by 1^st opposite party.  That the procedure was done in a negligent manner by 1^st opposite party.  Complainant was informed by doctors of Kolenchery MOSC hospital that there was gross negligence from the side of opposite parties.  Complainant was again admitted for further treatment on 8.2.2016 and discharged on 18.2.2016 from Kolenchery hospital after certain operations.  Again she was admitted on 22.2.2016 and discharged on 23.2.2016 for further procedure at the same hospital.  In all, complainant was admitted for 24 days in Kolenchery hospital.  Complainant is presently bed ridden as she is unable to walk.  Her ureters have not attained normalcy.  She was advised that further surgical procedure was necessary for correcting ureters.  Complainant has spent more than 2 lakhs for treatment at Kolenchery Medical College hospital.  Earlier, she had spent Rs.30,000/- in Idukki District Co-operaive hospital.  Complainant is struggling to make both ends meet.  Daily wages of her husband are the only source of livelihood.  She had filed a complaint with regard to the incident to Thodupuzha DySP.  However, DySP had sent her to Circle Inspector of Thodupuzha, without taking any steps.  After some days,                                                                                                         (cont....3)

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husband of the complainant was summoned to  police station and informed that there are no provisions for taking criminal case against doctors.  Though complaint was sent to DMO of Idukki too, it was not considered.  Complainant submits that there was gross negligence in her treatment from the side of opposite parties.  She prays for an award of Rs.3,50,000/- from opposite party towards expenses met by her for her treatment.  She also seeks compensation of Rs.15 lakhs for deficiency in service from the side of opposite parties and litigation cost of Rs.10000/-. 

 

2. Opposite parties 1, 3 and 4 have appeared.  1^st opposite party filed a written version disputing the claim.  His contentions are briefly discussed hereunder :

 

According to 1^st opposite party, complainant had consulted him for the 1^st time with complaints of irregular bleeding from vagina, on 30.4.2014.  She had history of vaginal bleeding from 20.3.2014 onwards.  She had also a history of 2 caesarean sections and her last child was born 12 years ago.  Upon clinical examination, her uterus was found to be bulky.  She was symptomatically managed with medication, initially, as out patient.  For some period, bleeding was controlled by medication.  However, on 18.12.2015, complainant was brought to Idukki District Co-operative hospital with heavy vaginal bleeding with anaemia.  She was admitted.  Ultrasound scan of abdomen and pelvis showed fibroid uterus.  Complainant and her bystanders were informed about ultrasound findings.  Complainant was advised total abdominal hysterectomy with salpino-oopherectomy, which is the accepted surgical  procedure for the diagnosed condition of patient.  Initially her anaemia was corrected with compatible blood transfusion and the patient was posted for abdominal hysterectomy.  Before the procedure, 1^st opposite party had fully explained pros and cons of abdominal hysterectomy with salpino-oopherectomy to complainant and her relatives.  All the risks and complications which may arise were fully explained to them.  Complainant and her relatives had agreed to undergo the procedure and complainant had given written consent for surgery.  Thereafter under all aseptic care and precautions, 1^st opposite party had conducted the procedure mentioned above under spinal anaesthesia, on 22.12.2015.  Intra operatively it was found that there were severe adhesions of omentum to the abdominal wall.  Urinary bladder was pulled up and adherent to the lower uterus and those adhesions had made procedure difficult.  With due care and caution, adhesions were released, bladder and ureters were checked and found intact.  Procedure was completed.  Post operatively patient was kept under close monitoring and observation.  Clear urine had drained through tube drain.  Though post operative period was uneventful and did not have any complaints, patient was discharged on 30.12.2015.  On 3.1.2016, complainant had reported in the hospital with complaint of lower abdominal pain and low grade fever.  She was admitted.  Her blood and urine were examined.  Results showed infection.  Hence antibiotics were started  as per culture and sensitivity along with supporting medicines.  Since patient did not show manifest signs of clinical                                                                                                               (cont....4)

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improvement, she was advised ultrasound scan of abdomen.  Ultrasound examination showed right ureteric obstruction due to extrinsic compression.  In view of ultrasound findings, complainant was immediately referred to urologist for further management.

 

Hysterectomy was advised for definite indications based on USG and clinical manifestation.  1^st opposite party had exercised due care and diligence in conducting total abdominal hysterectomy and salpino-oopherectomy.  Due to previous surgeries, complainant had severe adhesions and distorted anatomy of internal organs.  Adhesions were to be released for procedures mentioned above.  In a densely adhesive state of bladder and uterus due to previous surgeries, there was high risk of injury or inflammation to nearby structures while releasing adhesions.  This can cause stricture in the ureter leading to hydroureteronephrosis.   This is a medically accepted known complication associated with any pelvic surgery.  Complainant had a bulky uterus and this condition can be due to extrinsic compression as diagnosed in ultrasound scanning.  Known risk factors during vaginal surgery include endometriosis, prior pelvic or vaginal surgery and presence of pelvic organ prolapsed etc.  Complainant has not shown any signs of suspected ureteric involvement during pre-operative or post operative stages.  This is evidenced by drain of clear urine during post operative stage.  She had no complaints during post operative stages and follow up management was in strict regard to standard and accepted guidelines.  By getting ultrasound scanning report which had indicated ureter hydroureteronephrosis, complainant was immediately referred to urologist for further management.  Complications according to opposite parties were owing to reasons outlined earlier.   He further submits that no surgeon is expected to give assurance that the surgery will be devoid of complications.  The surgeon is not an insurer against risk factors involved in a surgery.  1^st opposite party had exercised reasonable degree of skill, care and expertise in the treatment of complainant as is expected from a professional having his qualifications and experience.  There was no negligence or deficiency in service from his side in the treatment of complainant.  Averments in paragraph 4 of the complaint, that complainant had suffered pain and uneasiness during post surgery stage and despite this she was discharged for taking rest at home are falsely and purposefully made to take undue advantage of the situation.  Complainant did not have any complications as mentioned earlier, during post operative stages.  She was discharged in fit and stable condition.  She had reported back with abdominal pain and low grade fever only by the 4^th day of discharge.  Findings of urologist and modality of treatment at MOSC are not to the knowledge of 1^st opposite party.  Contentions that an expert examination was conducted by the urologist which revealed injury to kidney and ureter and severe infection due to defect in hysterectomy procedure done by 1^st opposite party are totally unfounded and unsustainable.  Terms acute kidney injury and ureteric stricture is mistakenly interpreted as if wound was caused to kidney and ureter during hysterectomy.  Ureteric stricture is a condition caused by factors beyond the control of 1^st opposite party which could not be anticipated                                                                                                                   (cont.....5)

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during surgery.  It can be diagnosed only on the basis of clinical symptoms exhibited during post operative stages and by investigations like ultrasonogram.   Ureteric stricture can lead to urinary obstruction and acute kidney injury and hydronephrosis.  This condition can be managed by urologist and therefore 1^st opposite party had advised reference to a urologist.  Contentions that complainant developed a condition of hydronephrosis and infection due to gross negligence and serious latches from the side of 1^st opposite party  are  ill motivated and therefore denied.  Averments pertaining to physical condition of complainant are  falsely made for making undue gains.  Amount shown towards treatment expenses are excessive and exaggerated.  Contentions that complainant had suffered mental and physical hardships are baseless.  Compensation claimed is highly excessive and without any rationale.  1^st opposite party is not liable to pay any amount to complainant either by way of compensation or otherwise.  Complainant had no cause of action against 1^st opposite party.  He is a well qualified and experienced gynaecologist with degree of MBBS DGO. He has an experience of 36 years in the respective field.  On these premises, 1^st opposite party prays for a dismissal of the complaint as such.

 

3.  3^rdand 4^th opposite parties have filed a joint written version.  They have more or less addressed the same contentions with regard to the treatment and allegations of medical negligence raised by the complainant as contended by 1^st opposite party in his written version.  In addition to this, they would further contend that there is no post of administrator and therefore under 2^nd opposite party as named in the cause title does not exist.  They have also pleaded that complainant has not paid anything for the treatment given to her at District Co-operative Hospital, as she was insured.  That  being so, service being free of charge, complaint cannot be maintained.  They would further contend that the reliefs prayed for cannot be granted and that the complaint is to be dismissed as such.

 

4.  Case was posted for evidence after affording sufficient opportunity to both sides to take steps.  We notice that applications were filed from the side of complainant, after her initial examination before Commission, to allow her to tender additional proof affidavit and an additional chief affidavit is seen filed. Since no further pleadings were addressed by opposite parties, grant of such an opportunity would only amount to invite cooked up explanations after deliberations to upset any admission given by complainant during her cross examination. Such a course will not serve interests of justice. It is also seen that the complainant had filed application seeking production of all her case records from Idukki District Co-operative Hospital. These records have already been produced.  We notice that after availing repeated opportunities for further evidence, after  examining PW2, the surgeon who had attended to the complainant in Kolenchery Medical College Hospital, complainant has not produced any new document or sought to examine any witness as such.  On 20.1.2023, case was posted for further evidence of                                                                                                                    (cont.....6)

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complainant with a direction that no further time will be granted.  Earlier, from 3.12.2021 onwards, repeated opportunities were availed by complainant for further evidence.  Yet no further evidence was tendered by him.  Therefore, on 6.3.2012, this Commission had no option but to close complainant’s evidence as on the last adjourned date for evidence, complainant was absent.  There was no representation from his side either.  Case was then posted for opposite parties’ evidence.  No evidence was tendered by 1^st, 3^rd and 4^th opposite parties.  Hence evidence was closed.  However, we would mention that complainant had examined herself and surgeon who had adopted corrective procedure in Kolenchery Medical College Hospital as PWs1 and 2 respectively to prove her case.  Ext.P1 to P7 were proved by complainant and Ext.P8 discharge summary issued from Kolenchery MOSC hospital was proved by PW2.  We also notice that there was no representation from both sides on 1.6.2023 when the case has posted for hearing and therefore we have taken the case as such for final orders.

 

Based on the pleadings and evidence which are available in this case, following points are raised for consideration :

1)  Whether there was deficiency in service from the side of opposite parties ?

2)  Whether 1^st opposite party is guilty of medical negligence as such ?

3)  Whether complainant is entitled for any of the reliefs prayed for in the complaint ?

4)  Final orders and costs.

 

5.  Point No.1 and 2 are considered together :

 

          Upon going through the complaint, we find no specific allegations against the hospital and authorities in charge of it’s administration.  In so far as 3^rd and 4^th opposite parties are concerned, they have taken a contention that only 3^rd opposite party is competent to represent the hospital. By laws of society were not produced and hence these contentions remain unproved. As far as 2^nd opposite party is concerned, contentions are advanced by 3^rd and 4^th opposite parties that there was no post of administrator in Idukki District Co-operative Hospital. This does not appear to be convincing since registered notice sent to administrator was accepted by the addressee.  Person who had received the notice addressed to 2^nd opposite party had not appeared or given any clarification in the matter.  So also contentions advanced by opposite parties 3 and 4 that there is no post of administrator as such are not supported by any evidence from their side. 

 

          Coming  to allegations levelled, it is with regard to the surgical procedure adopted by 1^st opposite party who was at that time working as a gynaecologist in the hospital represented by opposite parties 3 and 4.  First allegation is that after surgery, though pain was subsisting, she was discharged on 30.12.2015 for taking rest from her residence.  Opposite parties 1, 3 and 4 have denied this allegation in their written                                                                                                           (cont....7)

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version.  They have contended that complainant had not reported any pain while convalescing after surgery. She had reported back in the hospital after 4 days of discharge with lower abdominal pain and low grade fever. Considering the procedure adopted feelings of pain are only natural and these may subsist also, when sedatives wear off. Complaint does not say that pain was very intense or unusual, which may necessitate further probe.  Next allegation is against 1^st opposite party.  According to complainant, her expert examination at Kolenchery Medical College Hospital had revealed that severe injury was occasioned to kidney and ureters owing to surgical procedure adopted by 1^st opposite party.  These injury became infected and                inflamed.    Therefore corrective procedure was adopted by the Surgeon at Kolenchery Medical College Hospital.  Apparently, allegations are to the effect that surgical intervention was done carelessly which had lead to injury to internal organs.  To prove this, there is only evidence of PWs1 and 2 and Exts.P1 to P8.  Ext.P1 is a copy of discharge summary of the complainant issued by District Co-operative Hospital and Ext.P2 is the original discharge summary.  Ext.P3, 15 in numbers are bills pertaining to treatment of complainant which total to Rs.1,75,746/-.  Ext.P4 is a copy of petition register maintained by DySP, Thodupuzha  which contain endorsements regarding the complaint filed by complainant as against  opposite parties, apparently.  It is seen recorded that the matter could not be settled amicably and hence parties were advised to seek their remedies before Civil Court.  Ext.P5 is letter given by DMO of Idukki informing complainant that Thodupuzha District Co-operative Hospital does not come under the administrative control of DMO,  aparently, for the reason that it was a private hospital.  Ext.P6 are 9 trip sheets evidencing payment of Rs.30,000/- in total by complainant for journeys undertaken from her residence to hospitals in connection with treatment taken by her.  Ext.P7 is written receipt given by one Mary Varkey, for having received Rs.70,000/- from complainant for attending her as a bystander during the course of treatment.  Ext.P8 is copy of discharge summary issued by the doctor in Kolenchery MOSC Medical College hospital relating to complainant.

 

          Now what takes place in the operation theatre is something which is within the knowledge of surgeon and the persons who had assisted him in completing the procedure.  Opposite parties 1, 3 and 4 have contended in written version that procedure was in accordance with  medical protocol and done without any latches or mistakes.  They would give reasons for this by contending that there was passing of clear urine after operation.  We notice that able counsel for complainant had taken much efforts during examination of PW2 to prove that there was negligence from the part of 1^st  opposite party while conducting surgery.  However, nothing was brought out  which would probabilise the case of medical negligence as against 1^st opposite party.  PW2 has admitted that precautions are to be  taken by surgeon to avoid risk in the course of surgical procedure.   That each organ has to be safeguarded against possible injury during surgery.  PW2 was further asked whether there is rechecking of organs to                                                                                                                            (cont.....8)

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ascertain their state after surgery to which the witness has answered there was no procedure for rechecking at the time when procedure is completed.  If at all there are any complications after surgery, these are looked into subsequentially considering the complainants voiced by the  patient. That tests are also conducted to ascertain whether injuries were caused to other organs.  That the doctor who had performed the surgery, if any  injury has been caused, has the duty to verify and rectify his latches.  We also notice that several suggestions were made to the witness outlining various circumstances in which injuries can be caused in the course of surgical procedure.  However, such suggestions even if agreed to by witness  will not be sufficient evidence to prove medical negligence as against 1^stopposite party.  We notice that complainant had sent complaints to DMO Idukki and Police also with regard to the alleged negligence by  opposite parties in treating her.  however, even after the filing of this case, there was no move from the side of complainant for her examination by medical board to ascertain whether the surgical procedure done by 1^st opposite party had resulted in any injury to her with the help of case records.  It is pertinent to note that during cross examination by 1^st opposite party, PW2 has admitted that extrinsic compression can be cause ureteric obstruction.   That bulky uterus may also cause compression.  Witness further answered if medication is not helpful, surgery should be performed upon a patient having fibroid uterus accompanied by heavy bleeding.  He also admits that in every surgery there is certain amount of risk involved in it.  PW2 would further admit that inflammation of nearby organs is possible in densly adhesive state of bladder and ureters due to previous surgeries.  The witness had further stated that if there are surgical intervention also like caesarean sections, removal of uterus will be complicated in the course of which injury may be caused to adjacent organs.

 

          To put it shortly, during cross examination by 2^nd opposite party, PW2 had outlined the circumstances where injury may be caused to internal organs during the course of surgical procedure as done in this case.  Now the question is whether this injuries were outcome of negligence from the side of 1^st opposite party.  However, admitted facts would not probabilise that there was  negligence.  Firstly, PW1 has admitted of having undergon 2 caesarean sesctions.  In such cases, there are  chances of adhesions occurring in abdominal wall which may distort the uterus.  Internal organs will be trapped to adhesives and removal could be a complicated procedure.  Hence such injuries which may be  occasioned during the course of surgical procedure cannot be always attributed to negligence from the side of performing surgeon.  Here complainant herself had admitted that 1^st opposite party was a reputed gynaecologist with requisite qualification, probably she had gone for consultation for these reasons, as she did not get respite from the treatment given to her from Bishop Vayalil Hospital.  She has no case that the doctor has not adopted correct procedure.  She has no case that there was any lack of pre-operative care either.  Under these circumstances, we do not think that the surgeon will purposefully commit any act of omission or commission which could be                                                                                                        (cont....9)

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termed as negligence while treating his patient.  Leaving all these aside, considering  the circumstances which have surfaced in this case it was incumbent upon the part of complainant to seek her examination by a team of medical experts, preferably a medical board, to ascertain whether there was any negligence from the side of 1^st opposite party in performing the surgery or not.  In the absence of such expert opinion, it is difficult for us to find that there was negligence from the side of 1^st opposite party in performing the surgery.   In so far as opposite parties 2 to 4 are concerned, there are no specific allegations against administration.  Complainant does not have a case that there was excess billing or latches in nursing or other hospital services. Main allegation is of negligence, levelled against 1^st opposite party in performing surgical procedure which fails due to lack of requisite degree of proof.  For these reasons, we find that complainant has not succeeded in proving any act of medical negligence on the part of 1^st opposite party or others.    Point Nos.1 and 2 are answered accordingly. 

 

6.  Point No.3 :

 

          Yet another contention was raised that the complainant had insurance and therefore she had not paid anything for the treatment given to her from the Co-operative Hospital.  These contentions are misconceived.  Opposite parties have no case that the treatment was given to complainant free of charge. The treatment was for consideration.  However owing to insurance, payment for  operation and treatment was by  insured.  Hence it could not be said that the complaint is not maintainable. For reasons assigned earlier, we find that complainant is not entitled for the reliefs prayed for.

 

7.  Point No.4 :

 

          In the result, this complaint is dismissed, under the circumstances, without costs.  Case records pertaining to complainant produced by 3^rd opposite party shall be returned to hospital after expiry of appeal period.  Parties are directed to take back extra sets of copies. 

 

          Pronounced by this Commission on this the  27^th  day of June, 2023

 

                                                                                      Sd/-

             SRI. C. SURESHKUMAR, PRESIDENT

 

                                       Sd/-

                                                                   SMT. ASAMOL. P., MEMBER

 

                                                                                      Sd/-                                                                                                  SRI. AMPADY. K.S., MEMBER                                                                                                                (cont....10)

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APPENDIX

 

Depositions :

On the side of the Complainant :

PW1        - Rosamma Francis.

PW2        -  Dr. Bobby John.

On the side of the Opposite Party :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1    -copy of discharge summary of the complainant issued by

      District Co-operative Hospital

Ext.P2  - original discharge summary. 

Ext.P3 (15 in numbers)  - bills pertaining to treatment of complainant which totals to

         Rs.1,75,746/-. 

Ext.P4     -   copy of petition register maintained by DySP, Thodupuzha. 

Ext.P5     -   letter given by DMO of Idukki informing complainant that Thodupuzha

District Co-operative Hospital does not come under the administrative control of DMO.

Ext.P6     - 9 trip sheets evidencing payment of Rs.30,000/- in total by complainant for

        journeys undertaken from her residence to hospitals in connection with

       treatment taken by her. 

Ext.P7    -  written receipt given by one Mary Varkey, for receiving Rs.70,000/- from

                  complainant for attending her as a bystander during the course of treatment. 

Ext.P8    -  copy of discharge summary issued by the doctor in Kolenchery MOSC

        Medical College hospital relating to complainant.

On the side of the Opposite Party :

Nil.

 

 

 

                                                                              Forwarded by Order,

 

 

                                                                          ASSISTANT REGISTRAR