NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITON NO. 123 OF 1997 Mrs. Varadha S. Nair . Complainant Vs. Dr. (Mrs.) Remani N. Rajan & Ors. . Opposite Parties BEFORE : HONBLE MR. JUSTICE M.B.SHAH, PRESIDENT. DR. P.D.SHENOY, MEMBER For the Complainant Mr. Madhu & Ms. Shakun Sharma, Advocates For M/s. P.H. Parekh & Co., Advocates. For the O.P.no. 1 & 3 Mr. Virendar Goswami, Advocate For M/s. Dutt & Menon, Advocates For the O.P. no.2 Mr. B.V. Deepak, Mr. Balraj Bal & Mr. N. Rajan, Advocates. DATED : 30th May, 2005 O R D E R
PER DR. P.D.SHENOY,
MEMBER
In
this case the following questions require consideration on the basis of the
evidence produced on record:
(i). Whether a doctor/surgeon can deliberately induce, frighten
and compel a patient to undergo an uncalled for major surgery? Answer
Obviously is No. However, facts
stated below indicate to the contrary.
(ii). Whether the Respondent No.2, Dr. P.S. Binu, (R-2) had deliberately cut the colon of the
Complainant for any ulterior motive? Admittedly, there was a cut on the colon by mistake by
R-1. For repair Dr. Binu was called by R-1.
(iii) To
what extent there is negligence on the part R-1 (since deceased) and thereby
Opposite Party No.3 Hospital would be liable?
Complaint
Complainant
a healthy and active woman, participating
in various social and cultural activities who is completely crippled and
made invalid, has approached the consumer forum for redressal
of her grievances because of alleged gross negligence in discharge of duties by
the doctors. The complainant went to
Respondent No. 1, Dr. ( Mrs.) Remani N. Rajan (since
deceased) at Vijaya Hospital
(R-3), Ernakuam for a regular check up. As per the
prescription prepared by respondent no. 1, she was normal. However, she was advised Hysterectomy. Thereafter, on 15.7.1991 there was pre-anesthetic
check up by the physician of respondent no. 3, (M/s. Vijaya Hospital). Unfortunately, complainant
underwent Hysterectomy on 19.7.1991, which gave opportunity to respondents no.1, Dr. (Mrs.) Remani N. Rajan and Respondent
No. 2, Dr. P. Sridharan Binu
to play with her life. It is contended
that while performing Hysterectomy, respondent no. 1 cut the small intestine
accidentally. Deceased Dr. Rajan removed
the uterus and one ovary, however, caused injury to intestine. Thereafter, respondent no.2, Dr. P.Sridharan Binu, surgeon, cut
the rectum accidentally and thereafter used the stapler gun (which was imported
by him) to staple the colon, even though that was not required. He also performed the operation for removal
of appendix without obtaining consent.
The damage caused to the complainant due to the operation was required to be repaired in
another hospital where several corrective surgeries were performed on her. Till today, the complainant is in a
vegetative state.
Facts as alleged by the Complainant:
It
is contended by the Complainant in her examination-in-chief before the State
Commission that in
the year 1982 she had undergone an operation for Carcinoma rectum at Medical College, Calicut. Dr. Karthikeyan
and Dr. Vinayachandran Nair were the doctors who
operated and treated her at Calicut. The operation was cent percent
successful and she was absolutely normal. She was, thereafter, referred by them
to Dr. Krishnan Nair of Trivandrum Medical College who had advised chemotherapy for two-and-half years, and
further advised for follow up for six months. She used to undergo check up once
in six months which consists of colonoscopy, endoscopy, if advised by Doctor
and other tests like barium enema, etc. at Calicut Medical College by Dr.Vinayachandran
Nair. All these results were shown to Dr.Krishnan
Nair at Trivendrum and Dr.Karthikeyan
at Calicut. They opined that she was
perfectly normal and she was only to follow check up.
In the year 1991, when she went to Calicut for routine check up, Dr.Vinayachandran
Nair was not there, and, hence, she had consulted Dr.Balakrishnan
at Sudheendra Hospital, Ernakulam, whereat two or three tests were conducted and
it was found to be normal. After examining the scan result Dr.Balakrishnan
told her that the right ovary was minimally enlarged and no need to worry on
this count. The reports were sent to Dr.Vinayachandran
Nair and Dr. Krishnan Nair who had also agreed with the opinion of Dr.Balakrishnan. Thereafter Dr.Balakrishnan
advised her to consult a Gynaecologist. Hence, as per his advice, she had
consulted Dr.Remany Rajan,
(R-1) who is a Gynaecologist, during the next check up in July, 1991.
On 7.7.1991 she met R.1 and showed all
the medical reports to her. R-1 was aware of the status of her health as the
Complainant told her about her state of health when she met R-1 on an earlier
occasion, i.e. in the year 1989. On a perusal of the case records, R-1 advised
for hysterectomy. She had physically examined the Complainant and prescribed
Chymoral Forte for ten days which is intended for shrinking of cyst in the
ovary. When R-1 had advised for hysterectomy, the Complainant had brought to
her notice the opinions given by Dr. Balakrishnan, Dr.Vinayachandran Nair and Dr. Krishnan Niar,
according to whom the Complainant was normal and no need to undergo any surgery
and only follow up was necessary, R-1 had told her that none of the above
Doctors was a Gynaecologist and hence she would have to undergo the operation
and further suggested that it otherwise it would become cancerous.
As per her advice she had taken scan at
Dr. Nambiars Clinic on 8.7.1991 and went to R-1 on
15.7.1991. On examining the report, R-1 stated that the report was the same as
the earlier report of February, 1991 and reiterated that the operation was necessary.
The
Complainant was also advised to get done pre-operation check up from Dr.Sahajanandan,
whose report was shown to Dr.Rajan. Dr.Sahajanandan, after examining the Complainant and after going through the blood
test report, prescribed tablet Hetrazan 100 mg.
thrice daily for three weeks as the Complainant was having eosinophilia
in the blood test. He has further advised her to undergo the treatment
unless the surgery advised was so emergent, and that
surgery before the medication could cause post-operative complications like
cough, breathlessness, wheezing etc. When this advice of Dr.Shahjanandan
was brought to R-1s notice, R-1 told the Complainant that she could undergo
the operation and that the post operative complications stated by Dr.Sahajanandan were not very serious. Hence, the Complainant
did not take the full course of Hetrazan. Thereafter, she was advised to get herself
admitted on 17.7.1991 for Hysterectomy which she did and the surgery was fixed
for 19.7.1991.
It
is her further say that her sister and brother-in-law (both are Doctors) had
told her that Hysterectomy was not advisable as her complaint was confined to
cystic ovary, and even if Hysterectomy was to be done, it could be done at Calicut Medical College. And, they further
told the complaint that she was ill advised by R-1 in this regard. When the Complainant had brought this fact to
the notice of R-1, R-1 told the Complainant that Hysterectomy was a simple
operation which would take only one hour and that there were all the facilities
in the R-3 Hospital and the Complainant need not worry. R-3 told her to make available one pint of
blood for the operation.
On 19.7.1991, after obtaining
consent from the Complainant for hysterectomy, she was administered anaesthesia at 7.00 AM and Dr.Rajan started the surgery at 7.30
AM.
Thereafter, the complainant
could not remember anything and she regained consciousness only
on 20th July, 1991 when she found
herself in the post operative intensive care unit, where she was lying
head-downwards, with high temperature, breathlessness, wheezing, cough, body
pain, especially in the stomach. She had intolerable pain and was given Deriphillin injection, and antibiotics were restarted. Deriphillin injection was being continued on the following
day with zeet expectorant. Bleeding was there through
vagina. There was constipation.
On
the third day she was shfited to room. Because of constipation, motion was not
passing through colostomy. Sister kept suppositor
at the colostomy but motion passed through anus. When R-2 came to know about
this he fired the sister who put the suppositor at
the wrong place. Her abdomen bulged which also caused intolerable pain.
Thinking that all this was due to urinary infection, R-1 prescribed Cyfran injection. There was no relief and later it was
found that it was due to formation of abscess in the stomach. Pain killer injections were prescribed. From
the 9th day onwards motion was passing through vagina though it was
passing through the colostomy earlier. She was advised to take Kanji and Barley.
The motion output through the colostomy was considerably reduced and discharge
through vagina had increased. At this juncture R-1 had plugged vagina with
cotton pads in order to prevent vaginal discharge and motion. This created
excruciating pain due to skin excoriation. Even after the pads were removed,
there was no relief from the discharge of motion through the vagina. She was
given local anaesthesia and operated upon at the
colostomy. In spite of that the flow of
discharge through the vagina continued. Ultra scan was taken at Dr. Nambiars Clinic and treatment continued, and, her condition
deteriorated day by day. In the meantime, the Complainants brother-in-law consulted some
experts in Calicut and she got her
discharged from the R-3 Hospital for being taken to Calicut for further medical
aid. The Complainant got admitted in Baby Memorial Hospital, Calicut. There some tests
were carried as suggested by Dr.Karthikeyan. On
7.8.1991 some corrective operation was conducted by Dr.Karthikeyan
and Dr.Mohan whereafter the
Complainant felt some
relief from the pain, but passing of motion through vagina was
continuing. She had constipation also. After a week another operation was
conducted for reducing the vaginal discharge, by the same Doctors. Since the food was not digested, she had to
take partially digested food which was not available in India. After two weeks of
the second operation, ilistomy was closed by another
operation. Even today, vaginal discharge continues accompanied by discharge
through colostomy. On 14.11.1991 she was discharged from the Baby Memorial Hospital. Since daily
dressing of the wounds was necessary she got admitted as an inpatient in the J.N.N.Hospital for nearly one and half months.
She had further stated that
after the operation in R-3s hospital, she was not able to move freely even in
the house, as, while walking she was having vaginal discharge. She could not use colostomy bag because of
the great excoriation of the skin. She is permanently using a kidney tray to collect the
discharge from the colostomy. She has to keep the kidney tray intact by using
hands and she could not even peacefully sleep because of this problem.
Discharge through vagina wets the clothes. Every now and then she has to go to
toilet for cleaning the area. She can lie down only on her left side. Her two finger nails are infected due to
constant application of the same for the purpose of taking out faecal matter through the vagina. Motion passes through the
anus once in two weeks and because of the constipation anema
is to be applied. Though the doctors say that she could take all types of food,
but she could not digest them, and whatever food she takes, it discharges
within 15 minutes through the colostomy. Because of continuous hospitalisation which led to non-caring of teeth, except
six, all the teeth are removed and artificial teeth are used by her. She could not attend to her domestic
activities. She could take bath only once in two weeks, that too with
the help of somebody. While walking inside the house, she has to use kidney
tray at the colostomy. The FACT, a company in which her husband is working,
had reimbursed a small portion of the medical expenses incurred by them. She
had to take a loan for meeting the expenses incurred in this behalf.
In her cross-examination she
had stated that she knew R-1 when she was working in Dr.Kunjaloos
Hospital and her family members were R-1s patients. R-1 was a doctor who had
good experience and practice and that she would not unnecessarily hospitalize
and charge the patients. Before the operation she had consulted R-1 three times
due to back pain. It was also stated by her that she had shown the scan reports
which were taken in February 1991 on the advice of Dr.Balakrishnan,
to R-1 in July, 1991 when she went to see R-1. The Complainant has further
stated that as the scan reports were similar, she felt no need to show the
second scan report to the doctors who had stated that there was no need for the
operation on the basis of the first scan report. The second scan report was not
shown to Dr.Vinayachandran, Dr.Balakrishnan
and Dr.Karthikeyan because her faith in R-1 prevented
her from taking a second
opinion. Her sister told R-1 that the operation was unnecessary.
Operation was started after making the Complainant unconscious. She did not ask
the R-1 to take a second opinion before the operation.
In the complaint her
condition as on today is stated as under:
(i)
she
is under constant care of somebody;
(ii)
motion
passes through anus, vagina and colostomy;
(iii)
very
frequent abdominal pain;
(iv)
persistence
of extensive excoreation which causes severe burning
pain of the abdomen and vagina;
(v)
the
skin in her abdomen is completely decayed and she is unable to put on her
colostomy bag;
(vi)
very
often she trembles with shooting pain;
(vii)
she
needs two pain killer injections daily;
(viii)
a
number of cotton rolls are required
every month for dressing;
(ix)
she cannot put the colostomy bag, because of
the extensive excoreations;
(x)
she
has to hold kidney tray to get rid of the motion;
(xi)
she
has to go to the toilet very often to clean the motion coming through vagina;
(xii)
when
the vaginal discharge increases, the skin is completely torn off, resulting
into severe unbearable pain, she become restless and trembles with severe pain;
(xiii)
she
suffers pain every day since the day of the operation performed by the Opposite
Parties, i.e. 19.7.1991.
She
has, therefore, filed a complaint before the Kerala
State Consumer Disputes Redressal Commission claiming damages to the tune of
Rs.9,50,000/-. In support of her claim
she has produced the medical bills amounting to Rs.3,25,000/-
and a sum of Rs.6,25,000/- is claimed towards damages and future expenses for
treatment.
It
is pointed out that the State Commission, Kerala
proceeded with the matter till 1996.
Evidence was recorded and the matter was fully argued. Thereafter, it was reserved for the judgement. But in
view of subsequent developments, the State Commission felt embarrassment in
disposing of the matter. It was finally
referred to this Commission in 1997.
This Commission passed an order on 8.4.1997 and transferred the matter
to it for decision.
Evidence of R-1
and other Witnesses:
Against the aforesaid evidence and
contentions, Dr.(Mrs.) Remani N. Rajan
(since deceased) (R-1) has stated in her deposition that she is working in Vijaya Hospital since 1988 and is a well equipped hospital
with all facilities for major operations and endoscopic surgery. She was having eight Junior Doctors, one
Junior Gynaecololgist and one Senior Endoscopic Surgeon.
Dr. P.S.Binu (R-2) was a Surgeon on call with special
training in paediatric surgery. They
were not having blood bank. However, one bottle of blood was kept ready for
major surgeries. Complainant was examined by her in July 1991 and she was
having cyst in the ovaries. This was diagnosed by clinical examination. Scan
report was taken. As per the scan report there was an enlargement of ovary.
She, therefore, suggested the Complainant for removal of uterus, tubes and
ovaries. She did not use any influence to persuade the Complainant or her
husband for having surgery. Before surgery, she was examined by a general
physician, Dr.Sahajanandan and was reported to be fit
for major surgery. She had denied that she had cut the ileum (small intestine)
of P.W.1 (Complainant). She had agreed that when she was removing the uterus
and a part of right ovary there was a damage just
behind vagina on the colon. Then Dr.Binu (R-2) came
and took over the operation and she started assisting him. It is her say that
the Complainant came with gyneacological problem but during the surgery she detected
a surgical problem which needed the assistance of a surgeon. It is her
further say that the right ovary was ruptured during dissection and cyst wall
had to be removed piece by piece and the intestines were very fragile. The
fragility was due to the previous diseases, surgery and chemotherapy. She had denied the
suggestion that Colon was not purposely cut to make use of the EEA stapling gun.
She has also stated that during the course of operation R-2 removed appendix
for the best interest of the patient. She had agreed that at about 7th
or 8th day Complainant started letting motion through the vagina.
She has stated that: There is no negligence on my part. I never cut the small
intestines. A damage occurred on the colon during my
surgery that was repaired by R-2. There has been no problem as a result of
damage of colon (without taking consent). The appendix was removed in good
faith. The colostomy was also done in good faith. The result of referral report
was given to PW-3 and PW-4. I did not give the Photostat copies of any of the
documents produced by PW-1 in the Court.
She saw the scan report dated 16.2.1991
and has admitted that as per the said
report left ovary was
normal without any space occupying and the right ovary was minimally cystic.
She has admitted in the cross-examinatin that: When
I found that there was damage on the
intestinal wall, I requested for the assistance of the second
Respondent. This happened during my
dissection. It was only a laceration of less than one centimetre. This damage might have occurred during my attempt to
remove the ovarian cyst. She
has stated that the said damage was repaired by R-2 by using Anastamotic gun. She
has also admitted that the petitioner did not have any cancer rectum at the
time of operation which was conducted at the R-3 Hospital. She
was required to admit that in Ex.P-4, she has stated that right ovary is cystic and I have advised
for hysterectomy.
On cut of Ilium:1:
In her examination-in-chief R-1,
(Dr.Rajan) stated that she did not cut the
small intestine (Ileum) of PW-1. She
further stated that she did not call R-2 to have the cut on the Ileum repaired
and that the Ileum was never cut.
However, in her cross-examination she has
stated that: When I found that there was a damage in the intestine wall, I requested for the assistance of R-2. This happens during my dissection. It was only a lacration of less than 1 cm. The damage might have occurred
during my attempt to remove the ovarian cyst.
She has also deposed that a damage occurred on
the colon during my surgery. That was repaired by R.2. The Appendix was
removed in good faith. The colostomy was also done in good faith.
Ex.30(page 86) is a referral letter written by the
Respondent No.3 Hospital to Dr.Nambiars Ultrasound
Scan Centre. In the middle of it, it says that the opinion to operate the
complainant was not arrived at just by examination but also on the basis of the
scan report.
(b). Evidence of Dr. Karthikeyan, P.W.2 Dr. Karthikeyan,
a qualified and experienced General Surgeon who was examined on behalf of the
complainant stated that he knew the Petitioner since 1982 and in the year when
he did the operation on this patient, he thought that an appendicectomy
was not indicated. After this operation she was doing well. No evidence of recurrence of the disease
cancer colon. There was a chance of developing cancer in some other part of the
colon. If it is not completely
removed or the treatment is delayed, it can spread to other organs. As far as the Complainant was concerned
whenever he saw her there was no evidence of spread of disease or any tumor in
any organ. He further stated that his
knowledge and experience was to the effect that colon would not become fragile
with chemotherapy particularly after eight years after chemotherapy. He further stated that chemotherapy will not
change the tone and texture in the internal organs after a long interval of
eight years.
It
is his further say that if he had anticipated adhesions or any complications
during surgery he would arrange four (4) more units of blood for
transfusion. In the case of colostomy,
if the patient is constipated the suppository has to be placed in the proximal
opening.
He
has also stated that in case of acute emergency, the operative surgeon has to
invite another doctor who should be summarized about the patient because he may
not get time to go through the records.
If a colleague points out that some organ is going to be wrongly cut, he
would proceed to confirm whether that was correct or not before dividing it. During operation if intestine seems to be
friable, they (the doctors) would proceed carefully to avoid injury to the
patient. If it is a planned operation,
he would postpone the surgery till the
treatment is completed. And, in case
the surgery is conducted without treatment and if it is impossible to proceed
with the surgery, the surgeon has to
either abandon the operation or proceed carefully provided he is confident to
tackle the situation.
On
3.8.1991 when the patient was brought to Calicut she was having
fever, colostomy was not working, profuse discharge from the vagina and having
severe pain around vagina and reddish discolouration
of the vagina and perineum.
The
appendix has no connection with ovary, uterus or tubes unless it is adherent by
disease.
According
to him it is a must to get consent from the patient or the close relatives
after explaining the procedure and carrying on of the operation.
(c). Evidence
of Dr. P.B.Prabhakaran, P.W.5
Dr.Prabhakaran also stated that before carrying out surgery
on the Complainant, the operating Doctor ought to have discussed the details of
the first operation with the
Surgeon who had first operated on her. R-1 should have kept in
mind possible complications. Further, only minimum possible surgical
interventions should have been carried and there was no chance of developing
carcinoma in other organs after the patient had rectal cancer.
(d). Evidence of Dr. P.S.Binu, R.W.2
Dr.P.S.Binu has stated that he was a Consultant General
Surgeon and also specialised in Paediatric
Surgery, and he was working as Consultant in the R-3 Hospital.
He has, in cross-examination stated
that on the day before the operation R-1 told him over phone that she was doing
a major operation on the next day and asked if I was available, and she did not
tell him the medical details. On the day of the operation, in the morning, he
had received a call from Dr.Thomas Sebastian, Anaesthetist. Immediately thereafter he had rushed to the
hospital as Dr.Sebastian did not explain in detail
the medical complaint of the complainant. Hence, he was not aware of the
specific complication for which he was called upon.
He
had also deposed that he did not have any opportunity to go through the
previous history of the Complainant before the operation.
He
has further deposed that he then inspected the operation site. The uterus and
right ovarian cyst had been removed and there was another cyst on the left side
ovary and also there was a laceration on the anterior wall of the rectum.
Some important questions with his
answers in the cross-examination are as under:
Q.
Has it come on record that R-1
called you on finding that there is a surgical problem in the light of messy
adhesions? On reaching R-3 you found that some of the organs were removed. So
what prompted you to stick on to R-3 Hospitals?
Ans. I adopted the procedures mentioned
in my version. The remaining left ovary (cyst) was removed, the next step to
repair the injury to the rectum. I could
not primarily suture the defect with simple sutures. Hence, the whole
rectum and left colon had to be mobilised and then
the rectum was completely divided at the site of injury and fresh anastamosis was performed using the stapler gun, because
this was an emergency procedure to protect the anastamosis.
I performed a de-functioning colostomy. I also released all the interstinal adhesions because these may have caused
intestinal obstruction in the post operative period. I also removed the
appendix because any future operation on this particular patient even for
appendicitis would have been hazardous.
He had also stated that the whole ovary
had become converted into a cyst.
The
whole left ovarian tissue was adherent and so he had removed piece meal.
He
has answered to
a question that the ovarian cyst can be identified as a cyst even after it is
ruptured.
His answer to the question that by the time he had come
to the operation theatre the cyst in the left ovary was already ruptured is,
it is possible.
Qn. In spite of laparoscopy and hystero salphingo gram etc, is it
correct to say that there is no way to study the anatomical changes so far as
the petitioner is concerned?
And. This particular
patient there were dense intra abdominal adhesions and so laparoscopy
could have been impossible. Hystero salphingogram will not give any information regarding the
ovarian cyst. So the best investigation
is an ultra sound scan which was done repeatedly only because this cysts appeared to be enlarging. This patient
already has cancer of the rectum and from outside it was humanly impossible to
say that the ovarian cyst were also not malignant.
Qn. How did the injury to rectum
occur?
Ans. I was not present when it occurred. But, on looking at the organs the
injury probably occurred while trying to remove the very densely adherent
uterus, ovary and rectum. Appendix is a vestigular
organ. It does not do us any good, often causes harm.
Qn. I put it to you that you have cut
the colon in a flash in order to facilitate the use of stapling gun?
Ans. I did not bring the stapler gun to
use on the patient. Colon was deliberately cut to
do a safe joining because it was impossible to repair the defect with simple
suturing. Stapler gun was only sent for when it was
realised that its use would benefit the patient.
Findings:
(a) Whether there
was emergent necessity
of hysterectomy? Was there any emergency for surgery?
.1. The
main contention of the Complainant is that removal
of uterus (hysterectomy) was not required when a patient was diagnosed having a
Cystic Ovary.
In
this regard it is the contention of the respondent No.1 that cyst could become
cancerous because previously complainant was operated for carcinoma and
therefore, there was necessity of hysterectomy.
In our view, this contention is without any substance and basis. Merely
because previously the complainant was operated for rectum carcinoma it would not be that cyst may also have cancerous
effect. On this aspect
complainant has relied on Exhibit
P-29, letter dated 30th April, 1991 of Dr. K. Vinayachandran Nair, who has carried out ultrasound study
of the abdomen and pelvis, (ultrasound
report is exhibit P-28) wherein it has been
stated that tests results
revealed that everything was normal and there was no need for any further test.
The only thing that was required was follow up colonoscopy once a
year. The ultrasound report dated 16.2.99 only reveals Left ovary
is normal without any space occupying lesion.
Right ovary is minimally enlarged in size and minimally cystic.
After
operation Dr. Nambiar has examined the Complainant
and has sent report dated 31.7.91 (Exhibit P-30) giving short clinical history
with diagnosis as under:
Sigmoid
resection and colo Rectal Anastomosis done in 1982
for Ca. Rectum. Now she has come with Rt. Ovarean
cyst and THH with BSO done on 19.7.91.
There was difficulty in removing the cyst as it was tracking in between
the loops of Bowel. While
dissecting was accidentally cut into the Rectum. Again colo-Rectal
anastomosis done. Appendicectomy also done and a temp. colostomy
at the left flexure done. Pt. Started leaking faecal matter thro vagina from 9th
day onwards. Hence the opening of
the distal loop of the colostomy was temporarily closed. Still pt. is having regor
and yellowish fluid coming through the vagina.
Request U.S. Scan to rule out any pelvic collection.
(b) The
learned Counsel for the Complainant further referred to Principles of
Gynaecology authored by Sir Norman Jeffcoate,
Emeritus, Professor of Obstretics & Gynaecology, University of Liverpool, at page 447 to the following
effect:
The senile ovary
is usually free but it is rare to see the ovary of a child or adult woman
without at least one small cyst in it. The mere finding of cysts in an ovary
should not therefore be regarded a being of pathological significance. Failure
of surgeons to recognise this fundamental fact has led to many young women
having a normal ovary removed in the course of appendicectomy.
This establishes that
there was no urgency or necessity of hysterectomy.
(c). Further
Dr. Rajan (R-1) ought to have waited till the course
of Hetrazan 100 mg. tablets (thrice daily) prescribed
by Dr.Sahajanandan for eosinophilia which was found
in the blood test of the Complainant as the operation was not an emergent one.
On
this point in her cross-examination she has stated as under:
Q. If a patient has
eosinophilia and if the operation is not emergent would you not wait till
eosinophilia has become normal?
Ans: If the
physician says OK, then I will take up the case.
The complainant was also given the medicine Chymoral Forte thrice a day
for ten days. This was for shrinkage of the cyst. But without waiting for the result, the
surgery was carried out. This has been
specifically stated by PW-3 Dr. Vanitha Nair (sister
of the complainant). Before carrying out the operation second ultra sound report was not obtained. On this aspect R-1
has stated in cross-examination that on examination of the complainant, cyst
was there and therefore, there was no reason for having second scan.
(d) As
far as diagnosis is concerned, the
Complainant contends that the diagnosis of R-1 on 7.7.1991 was not correct. As
evident from Ex.P-4, R-1s diagnosis was Right Ovary Cystic. Subsequently,
after operation PW-1 (Complainant) was found to have ovarian cyst in both the
ovaries. So diagnosis of R-1 was apparently erroneous.
(e). It
has also been pointed out that in cross-examination R-1 has stated that removal of uterus is called
hysterectomy; for cystic ovary the relevant treatment is not
hysterectomy; the ovary and cyst remains
in the body even after hysterectomy. It is, therefore, rightly pointed out that the
surgery carried out by R-1 was not connected with the ailment.
(f). It
is being alleged by the Respondents that Complainant might suffer from cancer
if the hysterectomy operation in R-3 was not carried out. This is blatantly a false defence. She was
operated for cancer in 1982 after which there was no indication at all and the
Complainant was absolutely normal. In the Histopathology report (Ex.P-12 at
p.60), uterus, tubes and ovaries, rectal wall and appendix were sent for
pathological examination and were found to be normal. This goes to show that
there was no pathological problem at all and the Complainant was normal.
2. The hospital (OP No.3) had no proper facilities for any
pre-operative or post-operative tests or for
storing and providing blood and accordingly was not a suitable place for
conducting surgery of this type.
(i). In this regard a reference may be made to the
deposition OP No.1 in her examination-in-chief to the effect that
: We do not have a blood bank. We group the patients blood and send the
samples to I.M.A. Blood Bank or I.S.B.T.Blood Bank
(Attached to the City Hospital). We always keep one bottle of blood ready for
major surgery. If we want extra blood we
phone up I.M.A. Blood Bank and we get it, which is replaced by the patients
relatives or friends.
This
part of the deposition amply shows that while carrying out the major surgeries,
the Opposite Party No.1 used to keep only one bottle of blood ready.
(ii). The
Complainant alleges that during surgery no surgeon was kept standby, even after
R-1 knew that she was doing this operation on a patient similar to that of
Complainant for the first time. In her cross-examination she had stated thus:
I had no occasion to do the operations as done in this case on a patient
similar to that of the Petitioner who had cancer rectum. It is further contended that being the first
such case, she should have taken utmost care and caution right from the
beginning as R-1 knew the history of the patient. In any case, in such a complicated case,
before conducting surgery it was the duty of R-1 to call for Surgeon who can
perform such surgery. On this aspect there is no reason not to rely upon the
evidence of P.W.2, Dr.R.Karthikeyan, who has
specifically stated that if it was a planned operation he would have postponed
the surgery till the treatment is completed and if it is impossible to proceed
with the surgery, the Surgeon either ought to have abandoned the operation or
to proceed carefully in case if he is confident to tackle the situation.
In this view of the mater, learned
Counsel for the Complainant rightly contended that there was no necessity of
total abdominal hysterectomy and that even pre-anaesthetic check up conducted
by Dr.Sahajanandan clearly shows that the Complainant
was asymptomatic and no palpable mass was noticed in the abdomen. Further, as
per the medical opinion, in case of benign ovarian cyst, total abdominal
hysterectomy was not at all necessary, and in such cases Cystectomy or
Oophorectomy would have been quite sufficient.
Post operative treatment was also not
proper. The suppository was placed at the colostomy and for this R-2 had fired
the Nurse who placed it at the wrong place. This has caused intolerable pain to
the Complainant.
In
an operation of this complicated nature, the paitents
stomach was kept open for more than half-an-hour on the operation table to get
the stapler gun from the residence of R-2, which in our view amounts to gross
negligence and deficiency in
service.
Keeping
in mind the facts stated above we would refer to Spring Medows
Hospital & Anr. Vs. Harjol Ahluwalia & Anr., (1998) 4 SCC 39 at 47, wherein the Apex
Court has specifically laid down the
principles for holding Doctors responsible in similar situation. The Apex Court held that:
Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the
course of anaesthetic will frequently lead to the imposition of liability and
in some situations even the principle of re-ipsa loquitur can be applied. Even delegation of responsibility to another
may amount to negligence in certain circumstances. A consultant could be negligent where he
delegates the responsibility to his junior with the knowledge that the junior
was incapable of performing of his duties properly. We are indicating these principles since in
the case in hand certain arguments had been advanced in this regard, which will
be dealt with while answering the questions posed by us.
Thereafter, a similar view was expressed with regard to burden of proof in Savita Garg (Smt.)
vs. Director, National Heart Institute (2004) 8 S.C.C. 56. The Apex Court
observed
that:
Once a patient is admitted
in a hospital it is the responsibility of the hospital to provide the best
service and if it does not, then the hospital cannot take shelter under the
technical ground that the surgeon concerned or the nursing staff, as the case
may be, was not impleaded, and therefore, the claim
should be rejected on the basis of non-joinder of
necessary parties. In fact, once a claim
petition is filed and the claimant has successfully discharged the initial burden that the hospital was
negligent, and that as a result of such negligence the patient died, then in
that case the burden lies on the hospital and the doctor concerned who treated that patient, that there was no negligence
involved in the treatment. Since the
burden is on the hospital, they can discharge the same by producing that doctor
who treated the patient in defence to substantiate
their allegation that there was no negligence.
In fact it is the hospital which engages the treating doctor thereafter
it is their responsibility. The burden is
greater on the institution/hospital than that on the claimant. The institution is a private body and they
are responsible to provide efficient service and if in discharge of their
efficient service there are a couple of weak links which have caused damage to
the patient then it is the hospital which is to justify the same and it is not
possible for the claimant to implead all of them as
parties. (emphasized supplied)
The evidence which is reproduced above
leaves no doubt that R-1 was deficient in discharge of her duties. Admittedly she negligently cut the rectum
and evidence reveals that there was erroneous cutting of ileum. Further there was no necessity of having
emergent hysterectomy operation. At the most ovarian cyst was required to be
removed. And, finally, there was no
necessity of operating appendicitis in such a complicated situation. The complainant was subjected to (I) Total
Abdominal Hysterectomy; (ii) Bilateral Salpingo
Oophorectomy and repair of rectum; (iii) End to end Anastamosis of left colon, (iv) LUQ Loop
Transverse Colostomy (v)
Appendicectomy burying stump, and (vi)
Repair of small intestines. For no
fault of her these uncalled for operations were performed on the complainant
for the best reasons known to the respondents.
Hence, it is a case of gross medical mistakes by which Complainant is
living crippled vegetation life.
Hence,
the Complainant is entitled to receive compensation for the damages suffered by
her. In our view, no amount would be sufficient to compensate the Complainant. The Complainant has stated that she had
incurred Rs.3,25,000/- towards hospital bills,
medicines, the details of which have been given in her complaint. She has also claimed Rs.6,25,000/-
towards future expenses and damages. Considering the suffering of the
complainant and the mental agony undergone by the complainant and her family
members, we feel that the amount claimed as compensation is just and
reasonable.
Accordingly,
the complaint is allowed. No order is
required to be passed against the R-1 as she is dead. Respondent Nos. 2 and 3, namely, Dr.P.S.Binu and Vijaya Hospital are jointly and
severally held liable
to pay the said amount of Rs.9.5 lakhs
with interest at the rate of 9%
p.a. from the date of
the complaint till the date of payment. The Respondent Nos. 2 and 3 are also
directed to pay costs of Rs.25,000/- to the
Complainant.
……J
(M.B.
SHAH)
PRESIDENT
……..
(P.D.SHENOY)
MEMBER
