{"id":241745,"date":"2005-05-30T00:00:00","date_gmt":"2005-05-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mrs-varadha-s-nair-mr-madhu-vs-dr-mrs-remani-n-rajan-ors-on-30-may-2005"},"modified":"2015-10-22T05:51:20","modified_gmt":"2015-10-22T00:21:20","slug":"mrs-varadha-s-nair-mr-madhu-vs-dr-mrs-remani-n-rajan-ors-on-30-may-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mrs-varadha-s-nair-mr-madhu-vs-dr-mrs-remani-n-rajan-ors-on-30-may-2005","title":{"rendered":"Mrs. Varadha S. Nair, Mr. Madhu & … vs Dr.(Mrs.) Remani N. Rajan & Ors., … on 30 May, 2005"},"content":{"rendered":"
National Consumer Disputes Redressal<\/div>\n
Mrs. Varadha S. Nair, Mr. Madhu & … vs Dr.(Mrs.) Remani N. Rajan & Ors., … on 30 May, 2005<\/div>\n
  \n \n \n \n \n \n NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION\n  \n \n \n \n \n \n \n \n \n\n\n\n\n\n\n\n \n\n\n\n NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION \n\n   NEW DELHI \n\n \n\n \u00a0\n\n \n\n \u00a0\n\n ORIGINAL PETITON\nNO. 123 OF 1997\n\n \n\n  \u00a0\n\n \n\n  \u00a0\n\n Mrs. Varadha S. Nair  . Complainant\n \n\n \n\nVs. \n\n \n\nDr. (Mrs.) Remani N. Rajan & Ors. . Opposite Parties \n\n \n\n \u00a0\n\n \n\n \u00a0\n\n \n\n BEFORE :  \n\n \n\n  \u00a0\n\n \n\n HONBLE MR. JUSTICE M.B.SHAH,  \n\n \n\n  PRESIDENT. \n\n \n\n DR. P.D.SHENOY, MEMBER \n\n \n\n \u00a0\n\n  \u00a0\n\n For the Complainant   Mr. Madhu\n& Ms. Shakun Sharma, Advocates \n\n \n\n For\nM\/s. P.H. Parekh &  Co., Advocates. \n\n \n\n \u00a0\n\n \n\nFor the O.P.no. 1 & 3  Mr.\nVirendar Goswami, Advocate \n\n \n\n For\nM\/s. Dutt & Menon,\nAdvocates  \n\n \n\n \u00a0\n\n \n\nFor the O.P. no.2  Mr. B.V. Deepak, Mr. Balraj Bal & \n\n \n\n  Mr. N. Rajan,\nAdvocates. \n\n \n\n \u00a0\n\n DATED\n:  30th May, 2005 \n\n \n\n \u00a0\n\n \n\n  O R D E R  \n<\/pre>\n
 \u00a0<\/p>\n
  \u00a0<\/p>\n
 PER DR. P.D.SHENOY,
\nMEMBER <\/p>\n
 \u00a0<\/p>\n
  In
\nthis case the following questions require consideration on the basis of the
\nevidence produced on record:\n<\/p>\n
 \u00a0<\/p>\n
(i).  Whether a doctor\/surgeon can deliberately induce, frighten
\nand compel a patient to undergo an uncalled for major surgery? Answer
\nObviously is No. However, facts
\nstated below indicate to the contrary.\n<\/p>\n
 \u00a0<\/p>\n
(ii).   Whether the Respondent No.2, Dr. P.S. Binu, (R-2) had deliberately cut the colon of the
\nComplainant for any ulterior motive? Admittedly, there was a cut on the colon by mistake by
\nR-1. For repair Dr. Binu was called by R-1.\n<\/p>\n
 \u00a0<\/p>\n
(iii) To
\nwhat extent there is negligence on the part R-1 (since deceased) and thereby
\nOpposite Party No.3 Hospital would be liable?\n<\/p>\n
 \u00a0<\/p>\n
 Complaint <\/p>\n
 \u00a0<\/p>\n
 Complainant
\na healthy and active woman, participating
\nin various social and cultural activities who is completely crippled and
\nmade invalid, has approached the consumer forum for redressal
\nof her grievances because of alleged gross negligence in discharge of duties by
\nthe doctors. The complainant went to
\nRespondent No. 1, Dr. ( Mrs.) Remani N. Rajan (since
\ndeceased) at   Vijaya  Hospital
\n(R-3), Ernakuam for a regular check up. As per the
\nprescription prepared by respondent no. 1, she was normal. However, she was advised Hysterectomy. Thereafter, on 15.7.1991 there was pre-anesthetic
\ncheck up by the physician of respondent no. 3, (M\/s.   Vijaya  Hospital). Unfortunately, complainant
\nunderwent Hysterectomy on 19.7.1991, which gave opportunity to respondents no.1, Dr. (Mrs.) Remani N. Rajan and Respondent
\nNo. 2, Dr. P. Sridharan Binu
\nto play with her life. It is contended
\nthat while performing Hysterectomy, respondent no. 1 cut the small intestine
\naccidentally. Deceased Dr. Rajan removed
\nthe uterus and one ovary, however, caused injury to intestine. Thereafter, respondent no.2, Dr. P.Sridharan Binu, surgeon, cut
\nthe rectum accidentally and thereafter used the stapler gun (which was imported
\nby him) to staple the colon, even though that was not required. He also performed the operation for removal
\nof appendix without obtaining consent.\n<\/p>\n
The damage caused to the complainant due to the operation was required to be repaired in
\nanother hospital where several corrective surgeries were performed on her. Till today, the complainant is in a
\nvegetative state.\n<\/p>\n
  \u00a0<\/p>\n
 Facts as alleged by the Complainant:\n<\/p>\n
  It
\nis contended by the Complainant in her examination-in-chief before the State
\nCommission that in
\nthe year 1982 she had undergone an operation for Carcinoma rectum at   Medical  College,   Calicut. Dr. Karthikeyan
\nand Dr. Vinayachandran Nair were the doctors who
\noperated and treated her at   Calicut. The operation was cent percent
\nsuccessful and she was absolutely normal. She was, thereafter, referred by them
\nto Dr. Krishnan Nair of   Trivandrum  Medical  College who had advised chemotherapy for two-and-half years, and
\nfurther advised for follow up for six months. She used to undergo check up once
\nin six months which consists of colonoscopy, endoscopy, if advised by Doctor
\nand other tests like barium enema, etc. at   Calicut  Medical  College by Dr.Vinayachandran
\nNair. All these results were shown to Dr.Krishnan
\nNair at Trivendrum and Dr.Karthikeyan
\nat   Calicut. They opined that she was
\nperfectly normal and she was only to follow check up.\n<\/p>\n
 \u00a0<\/p>\n
  In the year 1991, when she went to Calicut for routine check up, Dr.Vinayachandran
\nNair was not there, and, hence, she had consulted Dr.Balakrishnan
\nat Sudheendra Hospital, Ernakulam, whereat two or three tests were conducted and
\nit was found to be normal. After examining the scan result Dr.Balakrishnan
\ntold her that the right ovary was minimally enlarged and no need to worry on
\nthis count. The reports were sent to Dr.Vinayachandran
\nNair and Dr. Krishnan Nair who had also agreed with the opinion of Dr.Balakrishnan. Thereafter Dr.Balakrishnan
\nadvised her to consult a Gynaecologist. Hence, as per his advice, she had
\nconsulted Dr.Remany Rajan,
\n(R-1) who is a Gynaecologist, during the next check up in July, 1991.\n<\/p>\n
 \u00a0<\/p>\n
  On 7.7.1991 she met R.1 and showed all
\nthe medical reports to her. R-1 was aware of the status of her health as the
\nComplainant told her about her state of health when she met R-1 on an earlier
\noccasion, i.e. in the year 1989. On a perusal of the case records, R-1 advised
\nfor hysterectomy. She had physically examined the Complainant and prescribed
\nChymoral Forte for ten days which is intended for shrinking of cyst in the
\novary. When R-1 had advised for hysterectomy, the Complainant had brought to
\nher notice the opinions given by Dr. Balakrishnan, Dr.Vinayachandran Nair and Dr. Krishnan Niar,
\naccording to whom the Complainant was normal and no need to undergo any surgery
\nand only follow up was necessary, R-1 had told her that none of the above
\nDoctors was a Gynaecologist and hence she would have to undergo the operation
\nand further suggested that it otherwise it would become cancerous.\n<\/p>\n
 \u00a0<\/p>\n
  As per her advice she had taken scan at
\nDr. Nambiars Clinic on 8.7.1991 and went to R-1 on
\n15.7.1991. On examining the report, R-1 stated that the report was the same as
\nthe earlier report of February, 1991 and reiterated that the operation was necessary.\n<\/p>\n
  The
\nComplainant was also advised to get done pre-operation check up from Dr.Sahajanandan,
\nwhose report was shown to Dr.Rajan. Dr.Sahajanandan, after examining the Complainant and after going through the blood
\ntest report, prescribed tablet Hetrazan 100 mg.
\nthrice daily for three weeks as the Complainant was having eosinophilia
\nin the blood test. He has further advised her to undergo the treatment
\nunless the surgery advised was so emergent, and that
\nsurgery before the medication could cause post-operative complications like
\ncough, breathlessness, wheezing etc. When this advice of Dr.Shahjanandan
\nwas brought to R-1s notice, R-1 told the Complainant that she could undergo
\nthe operation and that the post operative complications stated by Dr.Sahajanandan were not very serious. Hence, the Complainant
\ndid not take the full course of Hetrazan. Thereafter, she was advised to get herself
\nadmitted on 17.7.1991 for Hysterectomy which she did and the surgery was fixed
\nfor 19.7.1991.\n<\/p>\n
 \u00a0<\/p>\n
  It
\nis her further say that her sister and brother-in-law (both are Doctors) had
\ntold her that Hysterectomy was not advisable as her complaint was confined to
\ncystic ovary, and even if Hysterectomy was to be done, it could be done at   Calicut  Medical  College. And, they further
\ntold the complaint that she was ill advised by R-1 in this regard. When the Complainant had brought this fact to
\nthe notice of R-1, R-1 told the Complainant that Hysterectomy was a simple
\noperation which would take only one hour and that there were all the facilities
\nin the R-3 Hospital and the Complainant need not worry. R-3 told her to make available one pint of
\nblood for the operation.\n<\/p>\n
 \u00a0<\/p>\n
 On 19.7.1991, after obtaining
\nconsent from the Complainant for hysterectomy, she was administered anaesthesia at  7.00 AM and Dr.Rajan started the surgery at  7.30
\n AM.\n<\/p>\n
Thereafter, the complainant
\ncould not remember anything and she regained consciousness only
\non  20th July, 1991 when she found
\nherself in the post operative intensive care unit, where she was lying
\nhead-downwards, with high temperature, breathlessness, wheezing, cough, body
\npain, 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
\nday with zeet expectorant. Bleeding was there through
\nvagina. There was constipation.\n<\/p>\n
 \u00a0<\/p>\n
  On
\nthe third day she was shfited to room. Because of constipation, motion was not
\npassing through colostomy. Sister kept suppositor
\nat the colostomy but motion passed through anus. When R-2 came to know about
\nthis he fired the sister who put the suppositor at
\nthe wrong place. Her abdomen bulged which also caused intolerable pain.
\nThinking that all this was due to urinary infection, R-1 prescribed Cyfran injection. There was no relief and later it was
\nfound that it was due to formation of abscess in the stomach. Pain killer injections were prescribed. From
\nthe 9th day onwards motion was passing through vagina though it was
\npassing through the colostomy earlier. She was advised to take Kanji and Barley.
\nThe motion output through the colostomy was considerably reduced and discharge
\nthrough vagina had increased. At this juncture R-1 had plugged vagina with
\ncotton pads in order to prevent vaginal discharge and motion. This created
\nexcruciating pain due to skin excoriation. Even after the pads were removed,
\nthere was no relief from the discharge of motion through the vagina. She was
\ngiven local anaesthesia and operated upon at the
\ncolostomy. In spite of that the flow of
\ndischarge through the vagina continued. Ultra scan was taken at Dr. Nambiars Clinic and treatment continued, and, her condition
\ndeteriorated day by day. In the meantime, the Complainants brother-in-law consulted some
\nexperts in   Calicut and she got her
\ndischarged from the R-3 Hospital for being taken to   Calicut for further medical
\naid. The Complainant got admitted in   Baby  Memorial  Hospital,   Calicut. There some tests
\nwere carried as suggested by Dr.Karthikeyan. On
\n7.8.1991 some corrective operation was conducted by Dr.Karthikeyan
\nand Dr.Mohan whereafter the
\nComplainant felt some
\nrelief from the pain, but passing of motion through vagina was
\ncontinuing. She had constipation also. After a week another operation was
\nconducted for reducing the vaginal discharge, by the same Doctors. Since the food was not digested, she had to
\ntake partially digested food which was not available in   India. After two weeks of
\nthe second operation, ilistomy was closed by another
\noperation. Even today, vaginal discharge continues accompanied by discharge
\nthrough colostomy. On 14.11.1991 she was discharged from the   Baby  Memorial  Hospital. Since daily
\ndressing of the wounds was necessary she got admitted as an inpatient in the J.N.N.Hospital for nearly one and half months.\n<\/p>\n
 \u00a0<\/p>\n
 She had further stated that
\nafter the operation in R-3s hospital, she was not able to move freely even in
\nthe house, as, while walking she was having vaginal discharge. She could not use colostomy bag because of
\nthe great excoriation of the skin. She is permanently using a kidney tray to collect the
\ndischarge from the colostomy. She has to keep the kidney tray intact by using
\nhands and she could not even peacefully sleep because of this problem.
\nDischarge through vagina wets the clothes. Every now and then she has to go to
\ntoilet for cleaning the area. She can lie down only on her left side. Her two finger nails are infected due to
\nconstant application of the same for the purpose of taking out faecal matter through the vagina. Motion passes through the
\nanus once in two weeks and because of the constipation anema
\nis to be applied. Though the doctors say that she could take all types of food,
\nbut she could not digest them, and whatever food she takes, it discharges
\nwithin 15 minutes through the colostomy. Because of continuous hospitalisation which led to non-caring of teeth, except
\nsix, all the teeth are removed and artificial teeth are used by her. She could not attend to her domestic
\nactivities. She could take bath only once in two weeks, that too with
\nthe help of somebody. While walking inside the house, she has to use kidney
\ntray at the colostomy. The FACT, a company in which her husband is working,
\nhad reimbursed a small portion of the medical expenses incurred by them. She
\nhad to take a loan for meeting the expenses incurred in this behalf.\n<\/p>\n
 \u00a0<\/p>\n
 In her cross-examination she
\nhad stated that she knew R-1 when she was working in Dr.Kunjaloos
\nHospital and her family members were R-1s patients. R-1 was a doctor who had
\ngood experience and practice and that she would not unnecessarily hospitalize
\nand charge the patients. Before the operation she had consulted R-1 three times
\ndue to back pain. It was also stated by her that she had shown the scan reports
\nwhich were taken in February 1991 on the advice of Dr.Balakrishnan,
\nto R-1 in July, 1991 when she went to see R-1. The Complainant has further
\nstated that as the scan reports were similar, she felt no need to show the
\nsecond scan report to the doctors who had stated that there was no need for the
\noperation on the basis of the first scan report. The second scan report was not
\nshown to Dr.Vinayachandran, Dr.Balakrishnan
\nand Dr.Karthikeyan because her faith in R-1 prevented
\nher from taking a second
\nopinion. Her sister told R-1 that the operation was unnecessary.
\nOperation was started after making the Complainant unconscious. She did not ask
\nthe R-1 to take a second opinion before the operation.\n<\/p>\n
 \u00a0<\/p>\n
 In the complaint her
\ncondition as on today is stated as under:\n<\/p>\n
(i)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\nshe
\nis under constant care of somebody;\n<\/p>\n
(ii)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\nmotion
\npasses through anus, vagina and colostomy;\n<\/p>\n
(iii)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\nvery
\nfrequent abdominal pain;\n<\/p>\n
(iv)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\npersistence
\nof extensive excoreation which causes severe burning
\npain of the abdomen and vagina;\n<\/p>\n
(v)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\nthe
\nskin in her abdomen is completely decayed and she is unable to put on her
\ncolostomy bag;\n<\/p>\n
(vi)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\nvery
\noften she trembles with shooting pain;\n<\/p>\n
(vii)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\nshe
\nneeds two pain killer injections daily;\n<\/p>\n
(viii)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\na
\nnumber of cotton rolls are required
\nevery month for dressing;\n<\/p>\n
(ix)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\nshe cannot put the colostomy bag, because of
\nthe extensive excoreations;\n<\/p>\n
(x)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\nshe
\nhas to hold kidney tray to get rid of the motion;\n<\/p>\n
(xi)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\nshe
\nhas to go to the toilet very often to clean the motion coming through vagina;\n<\/p>\n
(xii)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\nwhen
\nthe vaginal discharge increases, the skin is completely torn off, resulting
\ninto severe unbearable pain, she become restless and trembles with severe pain;\n<\/p>\n
(xiii)\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0
\nshe
\nsuffers pain every day since the day of the operation performed by the Opposite
\nParties, i.e. 19.7.1991.\n<\/p>\n
 She
\nhas, therefore, filed a complaint before the Kerala
\nState Consumer Disputes Redressal Commission claiming damages to the tune of
\nRs.9,50,000\/-. In support of her claim
\nshe has produced the medical bills amounting to Rs.3,25,000\/-
\nand a sum of Rs.6,25,000\/- is claimed towards damages and future expenses for
\ntreatment.\n<\/p>\n
 \u00a0<\/p>\n
  It
\nis pointed out that the State Commission, Kerala
\nproceeded with the matter till 1996.\n<\/p>\n
Evidence was recorded and the matter was fully argued. Thereafter, it was reserved for the judgement. But in
\nview of subsequent developments, the State Commission felt embarrassment in
\ndisposing of the matter. It was finally
\nreferred to this Commission in 1997.\n<\/p>\n
This Commission passed an order on 8.4.1997 and transferred the matter
\nto it for decision.\n<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
  \u00a0<\/p>\n
 Evidence of R-1
\nand other Witnesses:\n<\/p>\n
  Against the aforesaid evidence and
\ncontentions, Dr.(Mrs.) Remani N. Rajan
\n(since deceased) (R-1) has stated in her deposition that she is working in Vijaya Hospital since 1988 and is a well equipped hospital
\nwith all facilities for major operations and endoscopic surgery. She was having eight Junior Doctors, one
\nJunior Gynaecololgist and one Senior Endoscopic Surgeon.
\nDr. P.S.Binu (R-2) was a Surgeon on call with special
\ntraining in paediatric surgery. They
\nwere not having blood bank. However, one bottle of blood was kept ready for
\nmajor surgeries. Complainant was examined by her in July 1991 and she was
\nhaving cyst in the ovaries. This was diagnosed by clinical examination. Scan
\nreport was taken. As per the scan report there was an enlargement of ovary.
\nShe, therefore, suggested the Complainant for removal of uterus, tubes and
\novaries. She did not use any influence to persuade the Complainant or her
\nhusband for having surgery. Before surgery, she was examined by a general
\nphysician, Dr.Sahajanandan and was reported to be fit
\nfor major surgery. She had denied that she had cut the ileum (small intestine)
\nof P.W.1 (Complainant). She had agreed that when she was removing the uterus
\nand a part of right ovary there was a damage just
\nbehind vagina on the colon. Then Dr.Binu (R-2) came
\nand took over the operation and she started assisting him. It is her say that
\nthe Complainant came with gyneacological problem but during the surgery she detected
\na surgical problem which needed the assistance of a surgeon. It is her
\nfurther say that the right ovary was ruptured during dissection and cyst wall
\nhad to be removed piece by piece and the intestines were very fragile. The
\nfragility was due to the previous diseases, surgery and chemotherapy. She had denied the
\nsuggestion that   Colon was not purposely cut to make use of the EEA stapling gun.
\nShe has also stated that during the course of operation R-2 removed appendix
\nfor the best interest of the patient. She had agreed that at about 7th
\nor 8th day Complainant started letting motion through the vagina.
\nShe has stated that: There is no negligence on my part. I never cut the small
\nintestines. A damage occurred on the colon during my
\nsurgery that was repaired by R-2. There has been no problem as a result of
\ndamage of colon (without taking consent). The appendix was removed in good
\nfaith. The colostomy was also done in good faith. The result of referral report
\nwas given to PW-3 and PW-4. I did not give the Photostat copies of any of the
\ndocuments produced by PW-1 in the Court.\n<\/p>\n
 \u00a0<\/p>\n
  She saw the scan report dated 16.2.1991
\nand has admitted that as per the said
\nreport left ovary was
\nnormal without any space occupying and the right ovary was minimally cystic.
\nShe has admitted in the cross-examinatin that: When
\nI found that there was damage on the
\nintestinal wall, I requested for the assistance of the second
\nRespondent. This happened during my
\ndissection. It was only a laceration of less than one centimetre. This damage might have occurred during my attempt to
\nremove the ovarian cyst. She
\nhas stated that the said damage was repaired by R-2 by using Anastamotic gun. She
\nhas also admitted that the petitioner did not have any cancer rectum at the
\ntime of operation which was conducted at the R-3 Hospital. She
\nwas required to admit that in Ex.P-4, she has stated that right ovary is cystic and I have advised
\nfor hysterectomy.\n<\/p>\n
  \u00a0<\/p>\n
 On cut of   Ilium:1:\n<\/p>\n
In her examination-in-chief R-1,
\n(Dr.Rajan) stated that she did not cut the
\nsmall intestine (Ileum) of PW-1. She
\nfurther stated that she did not call R-2 to have the cut on the Ileum repaired
\nand that the Ileum was never cut.\n<\/p>\n
 \u00a0<\/p>\n
  However, in her cross-examination she has
\nstated 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
\nduring my attempt to remove the ovarian cyst.\n<\/p>\n
 \u00a0<\/p>\n
 She has also deposed that a damage occurred on
\nthe colon during my surgery. That was repaired by R.2. The Appendix was
\nremoved in good faith. The colostomy was also done in good faith.\n<\/p>\n
 \u00a0<\/p>\n
  Ex.30(page 86) is a referral letter written by the
\nRespondent No.3 Hospital to Dr.Nambiars Ultrasound
\nScan Centre. In the middle of it, it says that the opinion to operate the
\ncomplainant was not arrived at just by examination but also on the basis of the
\nscan report.\n<\/p>\n
 \u00a0<\/p>\n
(b).    Evidence\nof Dr. Karthikeyan, P.W.2 \n\n \n\n  Dr. Karthikeyan,\n<\/pre>\n
a qualified and experienced General Surgeon who was examined on behalf of the
\ncomplainant stated that he knew the Petitioner since 1982 and in the year when
\nhe did the operation on this patient, he thought that an appendicectomy
\nwas not indicated. After this operation she was doing well. No evidence of recurrence of the disease
\ncancer colon. There was a chance of developing cancer in some other part of the
\ncolon. If it is not completely
\nremoved or the treatment is delayed, it can spread to other organs. As far as the Complainant was concerned
\nwhenever he saw her there was no evidence of spread of disease or any tumor in
\nany organ. He further stated that his
\nknowledge and experience was to the effect that colon would not become fragile
\nwith chemotherapy particularly after eight years after chemotherapy. He further stated that chemotherapy will not
\nchange the tone and texture in the internal organs after a long interval of
\neight years.\n<\/p>\n
 \u00a0<\/p>\n
  It
\nis his further say that if he had anticipated adhesions or any complications
\nduring surgery he would arrange four (4) more units of blood for
\ntransfusion. In the case of colostomy,
\nif the patient is constipated the suppository has to be placed in the proximal
\nopening.\n<\/p>\n
 \u00a0<\/p>\n
  He
\nhas also stated that in case of acute emergency, the operative surgeon has to
\ninvite another doctor who should be summarized about the patient because he may
\nnot get time to go through the records.\n<\/p>\n
If a colleague points out that some organ is going to be wrongly cut, he
\nwould proceed to confirm whether that was correct or not before dividing it. During operation if intestine seems to be
\nfriable, they (the doctors) would proceed carefully to avoid injury to the
\npatient. If it is a planned operation,
\nhe would postpone the surgery till the
\ntreatment is completed. And, in case
\nthe surgery is conducted without treatment and if it is impossible to proceed
\nwith the surgery, the surgeon has to
\neither abandon the operation or proceed carefully provided he is confident to
\ntackle the situation.\n<\/p>\n
 \u00a0<\/p>\n
  On
\n3.8.1991 when the patient was brought to   Calicut she was having
\nfever, colostomy was not working, profuse discharge from the vagina and having
\nsevere pain around vagina and reddish discolouration
\nof the vagina and perineum.\n<\/p>\n
 \u00a0<\/p>\n
  The
\nappendix has no connection with ovary, uterus or tubes unless it is adherent by
\ndisease.\n<\/p>\n
 \u00a0<\/p>\n
  According
\nto him it is a must to get consent from the patient or the close relatives
\nafter explaining the procedure and carrying on of the operation.\n<\/p>\n
 \u00a0<\/p>\n
(c).  Evidence
\nof Dr. P.B.Prabhakaran, P.W.5    <\/p>\n
 \u00a0<\/p>\n
   Dr.Prabhakaran also stated that before carrying out surgery
\non the Complainant, the operating Doctor ought to have discussed the details of
\nthe first operation with the
\nSurgeon who had first operated on her. R-1 should have kept in
\nmind possible complications. Further, only minimum possible surgical
\ninterventions should have been carried and there was no chance of developing
\ncarcinoma in other organs after the patient had rectal cancer.\n<\/p>\n
  \u00a0<\/p>\n
 \u00a0<\/p>\n
 \u00a0<\/p>\n
(d).    Evidence of Dr. P.S.Binu,\nR.W.2 \n\n \n\n  \u00a0\n\n \n\n \u00a0\n\n \n\n<\/pre>\n
  Dr.P.S.Binu has stated that he was a Consultant General
\nSurgeon and also specialised in Paediatric
\nSurgery, and he was working as Consultant in the R-3 Hospital.\n<\/p>\n
 \u00a0<\/p>\n
  He has, in cross-examination stated
\nthat on the day before the operation R-1 told him over phone that she was doing
\na major operation on the next day and asked if I was available, and she did not
\ntell him the medical details. On the day of the operation, in the morning, he
\nhad received a call from Dr.Thomas Sebastian, Anaesthetist. Immediately thereafter he had rushed to the
\nhospital as Dr.Sebastian did not explain in detail
\nthe medical complaint of the complainant. Hence, he was not aware of the
\nspecific complication for which he was called upon.\n<\/p>\n
 \u00a0<\/p>\n
 He
\nhad also deposed that he did not have any opportunity to go through the
\nprevious history of the Complainant before the operation.\n<\/p>\n
 \u00a0<\/p>\n
 He
\nhas further deposed that he then inspected the operation site. The uterus and
\nright ovarian cyst had been removed and there was another cyst on the left side
\novary and also there was a laceration on the anterior wall of the rectum.\n<\/p>\n
 \u00a0<\/p>\n
  Some important questions with his
\nanswers in the cross-examination are as under:\n<\/p>\n
Q.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\n<\/p>\n
Has it come on record that R-1
\ncalled you on finding that there is a surgical problem in the light of messy
\nadhesions? On reaching R-3 you found that some of the organs were removed. So
\nwhat prompted you to stick on to R-3 Hospitals?\n<\/p>\n
Ans. I adopted the procedures mentioned
\nin my version. The remaining left ovary (cyst) was removed, the next step to
\nrepair the injury to the rectum. I could
\nnot primarily suture the defect with simple sutures. Hence, the whole
\nrectum and left colon had to be mobilised and then
\nthe rectum was completely divided at the site of injury and fresh anastamosis was performed using the stapler gun, because
\nthis was an emergency procedure to protect the anastamosis.
\nI performed a de-functioning colostomy. I also released all the interstinal adhesions because these may have caused
\nintestinal obstruction in the post operative period. I also removed the
\nappendix because any future operation on this particular patient even for
\nappendicitis would have been hazardous.\n<\/p>\n
 \u00a0<\/p>\n
  He had also stated that the whole ovary
\nhad become converted into a cyst.\n<\/p>\n
 The
\nwhole left ovarian tissue was adherent and so he had removed piece meal.\n<\/p>\n
 He
\nhas answered to
\na question that the ovarian cyst can be identified as a cyst even after it is
\nruptured.\n<\/p>\n
 His answer to the question that by the time he had come
\nto the operation theatre the cyst in the left ovary was already ruptured is,
\nit is possible.\n<\/p>\n
Qn. In spite of laparoscopy and hystero salphingo gram etc, is it
\ncorrect to say that there is no way to study the anatomical changes so far as
\nthe petitioner is concerned?\n<\/p>\n
  And. This particular
\npatient there were dense intra abdominal adhesions and so laparoscopy
\ncould have been impossible. Hystero salphingogram will not give any information regarding the
\novarian cyst. So the best investigation
\nis an ultra sound scan which was done repeatedly only because this cysts appeared to be enlarging. This patient
\nalready has cancer of the rectum and from outside it was humanly impossible to
\nsay that the ovarian cyst were also not malignant.\n<\/p>\n
 \u00a0<\/p>\n
Qn. How did the injury to rectum
\noccur?\n<\/p>\n
Ans. I was not present when it occurred. But, on looking at the organs the
\ninjury probably occurred while trying to remove the very densely adherent
\nuterus, ovary and rectum. Appendix is a vestigular
\norgan. It does not do us any good, often causes harm.\n<\/p>\n
 \u00a0<\/p>\n
Qn. I put it to you that you have cut
\nthe colon in a flash in order to facilitate the use of stapling gun?\n<\/p>\n
Ans. I did not bring the stapler gun to
\nuse on the patient.   Colon was deliberately cut to
\ndo a safe joining because it was impossible to repair the defect with simple
\nsuturing. Stapler gun was only sent for when it was
\nrealised that its use would benefit the patient.\n<\/p>\n
  \u00a0<\/p>\n
 Findings:\n<\/p>\n
(a) Whether there
\nwas emergent necessity
\nof hysterectomy? Was there any emergency for surgery?\n<\/p>\n
.1. The
\nmain contention of the Complainant is that removal
\nof uterus (hysterectomy) was not required when a patient was diagnosed having a
\nCystic Ovary.\n<\/p>\n
 In
\nthis regard it is the contention of the respondent No.1 that cyst could become
\ncancerous because previously complainant was operated for carcinoma and
\ntherefore, there was necessity of hysterectomy.
\nIn our view, this contention is without any substance and basis. Merely
\nbecause previously the complainant was operated for rectum carcinoma it would not be that cyst may also have cancerous
\neffect. On this aspect
\ncomplainant has relied on Exhibit
\nP-29, letter dated 30th April, 1991 of Dr. K. Vinayachandran Nair, who has carried out ultrasound study
\nof the abdomen and pelvis, (ultrasound
\nreport is exhibit P-28) wherein it has been
\nstated that tests results
\nrevealed that everything was normal and there was no need for any further test.
\nThe only thing that was required was follow up colonoscopy once a
\nyear. The ultrasound report dated 16.2.99 only reveals Left ovary
\nis normal without any space occupying lesion.
\nRight ovary is minimally enlarged in size and minimally cystic.\n<\/p>\n
 \u00a0<\/p>\n
  After
\noperation Dr. Nambiar has examined the Complainant
\nand has sent report dated 31.7.91 (Exhibit P-30) giving short clinical history
\nwith diagnosis as under:\n<\/p>\n
Sigmoid
\nresection and colo Rectal Anastomosis done in 1982
\nfor Ca. Rectum. Now she has come with Rt. Ovarean
\ncyst and THH with BSO done on 19.7.91.\n<\/p>\n
There was difficulty in removing the cyst as it was tracking in between
\nthe loops of Bowel. While
\ndissecting was accidentally cut into the Rectum. Again colo-Rectal
\nanastomosis done. Appendicectomy also done and a temp. colostomy
\nat the left flexure done. Pt. Started leaking faecal matter thro vagina from 9th
\nday onwards. Hence the opening of
\nthe distal loop of the colostomy was temporarily closed. Still pt. is having regor
\nand yellowish fluid coming through the vagina.
\nRequest U.S. Scan to rule out any pelvic collection.\n<\/p>\n
 \u00a0<\/p>\n
(b) The
\nlearned Counsel for the Complainant further referred to Principles of
\nGynaecology authored by Sir Norman Jeffcoate,
\nEmeritus, Professor of Obstretics & Gynaecology,   University of  Liverpool, at page 447 to the following
\neffect:\n<\/p>\n
 The senile ovary
\nis usually free but it is rare to see the ovary of a child or adult woman
\nwithout at least one small cyst in it. The mere finding of cysts in an ovary
\nshould not therefore be regarded a being of pathological significance. Failure
\nof surgeons to recognise this fundamental fact has led to many young women
\nhaving a normal ovary removed in the course of appendicectomy.\n<\/p>\n
 \u00a0<\/p>\n
 This establishes that
\nthere was no urgency or necessity of hysterectomy.\n<\/p>\n
 \u00a0<\/p>\n
(c). Further
\nDr. Rajan (R-1) ought to have waited till the course
\nof Hetrazan 100 mg. tablets (thrice daily) prescribed
\nby Dr.Sahajanandan for eosinophilia which was found
\nin the blood test of the Complainant as the operation was not an emergent one.\n<\/p>\n
 \u00a0<\/p>\n
 On
\nthis point in her cross-examination she has stated as under:\n<\/p>\n
 Q. If a patient has
\neosinophilia and if the operation is not emergent would you not wait till
\neosinophilia has become normal?\n<\/p>\n
 Ans: If the
\nphysician says OK, then I will take up the case.\n<\/p>\n
 \u00a0<\/p>\n
 The complainant was also given the medicine Chymoral Forte thrice a day
\nfor ten days. This was for shrinkage of the cyst. But without waiting for the result, the
\nsurgery was carried out. This has been
\nspecifically stated by PW-3 Dr. Vanitha Nair (sister
\nof the complainant). Before carrying out the operation second ultra sound report was not obtained. On this aspect R-1
\nhas stated in cross-examination that on examination of the complainant, cyst
\nwas there and therefore, there was no reason for having second scan.\n<\/p>\n
 \u00a0<\/p>\n
(d) As
\nfar as diagnosis is concerned, the
\nComplainant contends that the diagnosis of R-1 on 7.7.1991 was not correct. As
\nevident from Ex.P-4, R-1s diagnosis was Right Ovary Cystic. Subsequently,
\nafter operation PW-1 (Complainant) was found to have ovarian cyst in both the
\novaries. So diagnosis of R-1 was apparently erroneous.\n<\/p>\n
 \u00a0<\/p>\n
(e). It
\nhas also been pointed out that in cross-examination R-1 has stated that removal of uterus is called
\nhysterectomy; for cystic ovary the relevant treatment is not
\nhysterectomy; the ovary and cyst remains
\nin the body even after hysterectomy. It is, therefore, rightly pointed out that the
\nsurgery carried out by R-1 was not connected with the ailment.\n<\/p>\n
 \u00a0<\/p>\n
(f).   It
\nis being alleged by the Respondents that Complainant might suffer from cancer
\nif the hysterectomy operation in R-3 was not carried out. This is blatantly a false defence. She was
\noperated for cancer in 1982 after which there was no indication at all and the
\nComplainant was absolutely normal. In the Histopathology report (Ex.P-12 at
\np.60), uterus, tubes and ovaries, rectal wall and appendix were sent for
\npathological examination and were found to be normal. This goes to show that
\nthere was no pathological problem at all and the Complainant was normal.\n<\/p>\n
 \u00a0<\/p>\n
2.   The hospital (OP No.3) had no proper facilities for any
\npre-operative or post-operative tests or for
\nstoring and providing blood and accordingly was not a suitable place for
\nconducting surgery of this type.\n<\/p>\n
 \u00a0<\/p>\n
(i). In this regard a reference may be made to the
\ndeposition OP No.1 in her examination-in-chief to the effect that
\n: We do not have a blood bank. We group the patients blood and send the
\nsamples to I.M.A. Blood Bank or I.S.B.T.Blood Bank
\n(Attached to the   City  Hospital). We always keep one bottle of blood ready for
\nmajor surgery. If we want extra blood we
\nphone up I.M.A. Blood Bank and we get it, which is replaced by the patients
\nrelatives or friends.\n<\/p>\n
 \u00a0<\/p>\n
 This
\npart of the deposition amply shows that while carrying out the major surgeries,
\nthe Opposite Party No.1 used to keep only one bottle of blood ready.\n<\/p>\n
 \u00a0<\/p>\n
(ii).   The
\nComplainant alleges that during surgery no surgeon was kept standby, even after
\nR-1 knew that she was doing this operation on a patient similar to that of
\nComplainant for the first time. In her cross-examination she had stated thus:
\nI had no occasion to do the operations as done in this case on a patient
\nsimilar to that of the Petitioner who had cancer rectum. It is further contended that being the first
\nsuch case, she should have taken utmost care and caution right from the
\nbeginning as R-1 knew the history of the patient. In any case, in such a complicated case,
\nbefore conducting surgery it was the duty of R-1 to call for Surgeon who can
\nperform such surgery. On this aspect there is no reason not to rely upon the
\nevidence of P.W.2, Dr.R.Karthikeyan, who has
\nspecifically stated that if it was a planned operation he would have postponed
\nthe surgery till the treatment is completed and if it is impossible to proceed
\nwith the surgery, the Surgeon either ought to have abandoned the operation or
\nto proceed carefully in case if he is confident to tackle the situation.\n<\/p>\n
 \u00a0<\/p>\n
  In this view of the mater, learned
\nCounsel for the Complainant rightly contended that there was no necessity of
\ntotal abdominal hysterectomy and that even pre-anaesthetic check up conducted
\nby Dr.Sahajanandan clearly shows that the Complainant
\nwas asymptomatic and no palpable mass was noticed in the abdomen. Further, as
\nper the medical opinion, in case of benign ovarian cyst, total abdominal
\nhysterectomy was not at all necessary, and in such cases Cystectomy or
\nOophorectomy would have been quite sufficient.\n<\/p>\n
 \u00a0<\/p>\n
  Post operative treatment was also not
\nproper. The suppository was placed at the colostomy and for this R-2 had fired
\nthe Nurse who placed it at the wrong place. This has caused intolerable pain to
\nthe Complainant.\n<\/p>\n
 \u00a0<\/p>\n
 In
\nan operation of this complicated nature, the paitents
\nstomach was kept open for more than half-an-hour on the operation table to get
\nthe stapler gun from the residence of R-2, which in our view amounts to gross
\nnegligence and deficiency in
\nservice.\n<\/p>\n
 \u00a0<\/p>\n
  Keeping
\nin mind the facts stated above we would refer to Spring Medows
\nHospital & Anr. Vs. Harjol Ahluwalia & Anr., (1998) 4 SCC 39 at 47, wherein the   Apex
\n  Court has specifically laid down the
\nprinciples for holding Doctors responsible in similar situation. The   Apex Court held that:\n<\/p>\n
Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the
\ncourse of anaesthetic will frequently lead to the imposition of liability and
\nin some situations even the principle of re-ipsa loquitur can be applied. Even delegation of responsibility to another
\nmay amount to negligence in certain circumstances. A consultant could be negligent where he
\ndelegates the responsibility to his junior with the knowledge that the junior
\nwas incapable of performing of his duties properly. We are indicating these principles since in
\nthe case in hand certain arguments had been advanced in this regard, which will
\nbe dealt with while answering the questions posed by us.\n<\/p>\n
 \u00a0<\/p>\n
  Thereafter, a similar view was expressed with regard to burden of proof in Savita Garg (Smt.)
\nvs. Director, National Heart Institute<\/a>  (2004) 8 S.C.C. 56. The   Apex Court
\nobserved
\nthat:\n<\/p>\n
 Once a patient is admitted
\nin a hospital it is the responsibility of the hospital to provide the best
\nservice and if it does not, then the hospital cannot take shelter under the
\ntechnical ground that the surgeon concerned or the nursing staff, as the case
\nmay be, was not impleaded, and therefore, the claim
\nshould be rejected on the basis of non-joinder of
\nnecessary parties. In fact, once a claim
\npetition is filed and the claimant has successfully discharged the initial burden that the hospital was
\nnegligent, and that as a result of such negligence the patient died, then in
\nthat case the burden lies on the hospital and the doctor concerned who treated that patient, that there was no negligence
\ninvolved in the treatment. Since the
\nburden is on the hospital, they can discharge the same by producing that doctor
\nwho treated the patient in defence to substantiate
\ntheir allegation that there was no negligence.
\nIn fact it is the hospital which engages the treating doctor thereafter
\nit is their responsibility. The burden is
\ngreater on the institution\/hospital than that on the claimant. The institution is a private body and they
\nare responsible to provide efficient service and if in discharge of their
\nefficient service there are a couple of weak links which have caused damage to
\nthe patient then it is the hospital which is to justify the same and it is not
\npossible for the claimant to implead all of them as
\nparties. (emphasized supplied) <\/p>\n
 \u00a0<\/p>\n
  The evidence which is reproduced above
\nleaves no doubt that R-1 was deficient in discharge of her duties. Admittedly she negligently cut the rectum
\nand evidence reveals that there was erroneous cutting of ileum. Further there was no necessity of having
\nemergent hysterectomy operation. At the most ovarian cyst was required to be
\nremoved. And, finally, there was no
\nnecessity of operating appendicitis in such a complicated situation. The complainant was subjected to (I) Total
\nAbdominal Hysterectomy; (ii) Bilateral Salpingo
\nOophorectomy and repair of rectum; (iii) End to end Anastamosis of left colon, (iv) LUQ Loop
\nTransverse Colostomy (v)
\nAppendicectomy burying stump, and (vi)
\nRepair of small intestines. For no
\nfault of her these uncalled for operations were performed on the complainant
\nfor the best reasons known to the respondents.
\nHence, it is a case of gross medical mistakes by which Complainant is
\nliving crippled vegetation life.\n<\/p>\n
 \u00a0<\/p>\n
  Hence,
\nthe Complainant is entitled to receive compensation for the damages suffered by
\nher. In our view, no amount would be sufficient to compensate the Complainant. The Complainant has stated that she had
\nincurred Rs.3,25,000\/- towards hospital bills,
\nmedicines, the details of which have been given in her complaint. She has also claimed Rs.6,25,000\/-
\ntowards future expenses and damages. Considering the suffering of the
\ncomplainant and the mental agony undergone by the complainant and her family
\nmembers, we feel that the amount claimed as compensation is just and
\nreasonable.\n<\/p>\n
  Accordingly,
\nthe complaint is allowed. No order is
\nrequired 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
\nseverally held liable
\nto pay the said amount of Rs.9.5 lakhs
\nwith interest at the rate of 9%  <\/p>\n
p.a. from the date of
\nthe complaint till the date of payment. The Respondent Nos. 2 and 3 are also
\ndirected to pay costs of Rs.25,000\/- to the
\nComplainant.\n<\/p>\n
 \u00a0<\/p>\n
 ……J <\/p>\n
   (M.B.\n<\/p>\n
SHAH) <\/p>\n
  PRESIDENT<\/p>\n
 \u00a0<\/p>\n
 \u00a0<\/p>\n
……..\n<\/p>\n
   (P.D.SHENOY) <\/p>\n
 MEMBER <\/p>\n
 \u00a0<\/p>\n
 \u00a0<\/p>\n","protected":false},"excerpt":{"rendered":"
National Consumer Disputes Redressal Mrs. Varadha S. Nair, Mr. Madhu & … vs Dr.(Mrs.) Remani N. Rajan & Ors., … on 30 May, 2005 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI \u00a0 \u00a0 ORIGINAL PETITON NO. 123 OF 1997 \u00a0 \u00a0 Mrs. Varadha S. Nair . Complainant Vs. Dr. (Mrs.) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-241745","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nMrs. Varadha S. Nair, Mr. Madhu & ... vs Dr.(Mrs.) Remani N. Rajan & Ors., ... on 30 May, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mrs-varadha-s-nair-mr-madhu-vs-dr-mrs-remani-n-rajan-ors-on-30-may-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mrs. Varadha S. Nair, Mr. Madhu & ... vs Dr.(Mrs.) Remani N. 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