ORDER
Appeared at the time of arguments For Dr. Jagdish Lalwani : Mr. S.N. Bohra, Advocate For Dr. Sushil Acharya : Mr. Prateek Kasliwal, Advocate For Madan Lal Yadav : Mr. Abhishek Singh, Advocate For Dr. D.R. Meena : Mr. Devesh Kr. Bansal, Advocate For others : NEMO
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Pronounced on: 15th February 2022
ORDER
DR. S.M. KANTIKAR, MEMBER
1. Both the Appeals have been filed under Section 19 of the Consumer Protection Act, 1986 by two doctors (Appellants) against the Order dated 01.10.2013 passed by the State Consumer Disputes Redressal Commission, Jaipur, Rajasthan (hereinafter referred to as the "State Commission") in Complaint No. 2/2006 whereby the Complaint was partly allowed.
2. For the convenience, all the Parties would be referred to the positions they held in the Consumer Complaint No. 2/2006 filed before the State Commission. The facts are drawn from First Appeal No.840 of 2013.
3. The brief facts are that Mrs. Phooli Devi (hereinafter referred to as the "patient"), wife of Mr. Madan Lal Yadav - Complainant was suffering uterine problems about 1 ½ years. One Dr. Sita Ram Yadav (hereinafter referred to as the "Opposite Party No. 2") visited the Complainant's house on 13.03.2005 and insisted to undergo operation at Krishna Hospital at village Khejdoli as the operation would cost much less and cheaper than at Jaipur. Being so convinced, the Complainant admitted his wife in Krishna Hospital (hereinafter referred to as the "Hospital - Opposite Party No. 1") and hysterectomy was done on the same day. It was alleged that soon after the operation, the patient had pain and urine started oozing out continuously. It was brought to the notice of Opposite Party No. 2 and a urine bag was installed. The Opposite Party No. 2 stated that pain will be relieved within few days. On 24.03.2005, the patient got discharged from the Hospital with advice for complete bed rest. However, there was no improvement in her post-operative pain and discomfort and on 28.03.2005, the patient was taken to SMS Hospital, Jaipur. Dr. S.S. Yadav at SMS Hospital examined the patient and told about the cut injury to patient's urinary bladder during the hysterectomy. She was called for another operation for repair after three months only. Accordingly, the patient was operated at SMS Hospital on 16.09.2005 and discharged on 24.09.2005. Being aggrieved by the alleged gross medical negligence while performing the surgery, patient's husband Mr. Madan Yadav filed a Consumer Complaint against Opposite Parties before the State Commission to claim Rs. 35,00,000/- as total compensation.
4. The Opposite Party No. 2 filed its reply, but the Opposite Parties Nos. 1, 3, 4, 5 & 6 have not filed their replies despite they being served through the newspaper publication in 'Dainik Bhaskar'. The Opposite Party No. 2 in its reply stated that he was neither a doctor nor manager/administrator of the Krishna Hospital, but he was a Radiographer, running X-Ray Diagnostic Center in one part of Krishna Hospital. As, he was a relative of the Complainant, therefore, he requested the Surgeon, Dr. Sushil Acharya (Opposite Party No. 3) to operate Complainant's wife without any consideration. The operation was done at free of cost, therefore, the Complainant was not a consumer. He further submitted that the treating doctors saw the post-operative oozing of urine and opined that, it was a possible complication after long standing Pelvic Inflammatory Disease (PID).
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5. After hearing the parties, the State Commission partly allowed the Complainant and directed the Opposite Parties Nos. 1 to 5 to pay lumpsum amount of Rs.10,00,000/- with interest of 6% per annum to the Complainant. The Complaint against Mr. Girdhari Lal Yadav (Opposite Party No. 6) was dismissed.
6. Being aggrieved, only two of the five original Opposite Parties i.e. Surgeon, Dr. Sushil Acharya (Opposite Party No. 3) and Dr. Jagdeesh Lalwani (Opposite Party No. 4) have preferred separate First Appeals before this Commission.
7. Heard the learned Counsel for the Parties. Perused the material on record and gave our thoughtful consideration.
8. The affidavit filed by the Opposite Party No. 2 before the State Commission clearly states that all the Opposite Parties were jointly managing the hospital. Moreover, there was criminal proceeding going on simultaneously. Thus, we do not accept that only the Opposite Party No. 2 was served the notice and aware of the proceedings before the State Commission.
9. It is evident from the observation of the State Commission that Dr. Sita Ram Yadav (Opposite Party No. 2) was Manager / Administrator at Krishna Hospital and Dr. Sushil Acharya (Opposite Party No. 3) was a General Surgeon. He performed the hysterectomy in 2005. He was conferred MCh Neurosurgery in 2015. Admittedly, Dr. Jagdish Lalwani (Opposite Party No. 4) was MBBS and his role was limited as Anesthetist during surgery. The Opposite Party No. 5 - Dr. D. R. Meena, stated in her affidavit that she had only examined the patient for pre-operative fitness and not involved in surgery. In our view, though Surgeon can perform hysterectomy but, in the team of doctors, there was no qualified Gynecologist at Krishna Hospital.
10. We have gone through Shaw's Textbook of Gynaecology (16thEd.) and several medical literatures on Pelvic Inflammatory Disease (PID). The diagnosis of PID is based on combination of medical history, signs and symptoms, pelvic examination, blood and urine tests. In addition, it is confirmed by ultrasound, endometrial biopsy and finally by diagnostic laparoscopy. However, in the instant case, the treating doctors just relied on medical history, signs and symptoms to diagnose PID. Only in acute cases of PID, the surgical intervention is required. The first choice of treatment should be by antibiotics, which was not done by the treating doctors. As discussed, there was no Gynecologist, who examined the patient and diagnosed the PID. Thus, in our view, the doctors at Krishna Hospital were failed in their duty of care. No doubt, the surgery was uneventful but the question remains whether the patient really needed hysterectomy operation without any confirmed diagnosis of PID. Even if, we consider that the bladder injury was a known post-operative complication, however, in our view the operating surgeons should be more careful during surgery to avoid injury to the surrounding organs. In the instant case, post-operatively the treating doctors failed to detect or explain about the reasons for urinary leak.
11. It is relevant to note the observation made by the State Commission in its para 11 of the Order, which is reproduced as below:
11. During the course of investigation, the Investigating Officer sought expert opinion from Medical Jurist of the SMS Hospital in this matter. Dr. T.C. Sadasukhi, an Urologist
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of the SMS Hospital, expressed his opinion that the patient was suffering from Vescico Vaginal Fistula and a perforation was seen in the urinary bladder and uterus and this perforation was likely result of hysterectomy. Dr. Sadasukhi further opined that such possibilities are increased in case the uterus and urinary bladder are attached to each other due to infection. He also found during laparoscopy that the uterus was having considerable swelling and possibility of such complication (a cut & perforation in urinary bladder) was 3-8%. Thus, from the expert opinion of Dr. Sadasukhi, discharge ticket of the SMS Hospital (Annexure-2) and the charge sheet submitted by the police against non-petitioner no. 2-6, the allegation of the complainant is corroborated that the Doctors at the Krishna Hospital had negligently cut and perforated the urinary bladder of Mrs. Phooli Devi, during the course of operation of uterus. As a result of it, Mrs. Phooli Devi was subjected to severe pain, discomfort and uncontrolled dribbling and oozing of urine continuously from the date of initial surgery on 13.03.2005 (Annexure-
1) till her second surgery in the SMS Hospital on 16.09.2005 (Annexure-3).
12. The facts in the instant case clearly reveal us that the State Commission has merely relied on the charge sheet filed by the Police against the Appellant. We have perused the opinion from the Medical Jurist the expert opinion of the Urologist, Dr. T.C. Sadasukhi from SMS Hospital, Jaipur (Annexure - A3). According to him, there was VVF known complication occurs during hysterectomy operation. The chances are more due to infection between the wall of urinary bladder and uterus i.e. adhesions or due to cyst in the urinary bladder or abnormality in the uterus, such chances are 3 to 8%. According to him it cannot be termed as medical negligence.
13. The Appellant relied upon one medical literature - Vesico-vaginal fistulas in developing countries[1] and few the decisions viz Jacob Mathew vs. State of Punjab & Anr.[2]; Kusum Sharma & Ors. Vs. Batra Hospital and Medical Research Centre & Ors.[3]; Martin F. D'Souza vs. Mohd. Ishfaq[4] and Union of India & Ors. vs. Smt. Om Wati[5].
14. In the instant Appeals, the Medical Record is devoid of pre-operative consent, the operative details and further treatment details maintained by the Opposite Party Hospital. It should be borne in mind that the Medical Record is, itself, a vital document to prove the duty of care of the treating doctors or hospital. In our view, good medical record is a "good defense", poor medical record is a "poor defense" and no medical record means "no defense".
In the instant case, the Appellants failed on this count, the records were poorly maintained.
15. Based on the foregoing discussion, it is evident that the team of doctors is devoid of competent Gynecologist to diagnose PID and further mode of management by hysterectomy operation. In our view, initially, the patient (PID) could have been treated by medication and thereafter the decision of hysterectomy was a reasonable standard of practice. The Opposite Parties failed to follow the reasonable care. In addition, the poor Medical Record maintained by the hospital, itself, was a deficiency in service and failure of duty of care.
16. Considering the entirety of the case, though, in our view, the negligence is attributed in the instant case, we are not convinced with the award made by the State Commission, which is on a higher side. Therefore, the lumpsum compensation of Rs. 5 lakh alongwith interest @ 6% per annum from the date of filing of Complaint would be just and proper in this case.
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Thus, both the Appeals are partly allowed with the above modification. The Parties to bear their own costs.
[1] International Journal of Gynecology and Obstetrics 82 (2003) 285-295
[2] (2005) 6 SCC 1
[3] (2010) 3 SCC 480
[4] (2009) 3 SCC 1
[5] (2012) 4 CPR 292 (NC)
......................J
R.K. AGRAWAL
PRESIDENT
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DR. S.M. KANTIKAR
MEMBER
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