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	Important judgements passed by the Consumer Courts Hospital penalised for the negligence of the doctor NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI REVISION PETITION NO. 2288 OF 2015 (Against the Order dated 27/02/2015 in Appeal No. 640/2013 of the State Commission Kerala) MATHA HOSPITAL & 4 ORS. REP BY ITS MANAGING DIRECTOR, MR.SABU SEBASTIN, MATHA HOSPITAL, THELLAKOM, KOTTAYAM KERALA ...........Petitioner(s) Versus 1. LATHIKA & ANR. W/O VENUGOPOAN, KONATHUSSERIL HOUSE, P.O VARANAD, CHERTHALA,ALAPPUZHA, KERALA - 688539 2. UNITED INDIA, INSURANCE CO LTD., DIVISIONAL OFFICE, GEETHA TRADE CENTRE, P.B NO-210 NAGAMPADOM, KOTTAYAM KERALA - 686001 ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE D.K. JAIN,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER Dated : 15 Sep 2016 ORDER By this Revision Petition, the Hospital, viz., Matha Hospital, its Directors and the treating doctor, Opposite Party No.3 in the Complaint, question the correctness and legality of the order dated 27.2.2015, passed by the Kerala State Consumer Disputes Redressal Commission at Thiruvananthapuram (for short “the State Commission”), in First Appeals No.640/2013 and 14/2014. By the impugned order, the State Commission, while allowing the Appeal of the Insurance Company, Opposite Party No.6 in the Complaint, has otherwise affirmed the order dated 12.9.2013 passed by the District Consumer Disputes Redressal Forum, Kottayam (for short “the District Forum”) in CC No.122/2010, on merits. By the said order, the District Forum, had concluded that there was negligence on the part of the treating doctor, Petitioner No.3 herein, in conducting the Hysterectomy by key hole procedure, had directed the Insurance Company, to pay to the Complainant a sum of ₹10,00,000/- as compensation with interest at the rate of 10% from the date of filing of the Complaint till realization, besides costs quantified at ₹5,000/-. 2. Succinctly put, the occasion to file the Complaint arose under the following circumstances : Since the Complainant was suffering from continuous stomach pain and bleeding, she consulted Petitioner No.3 doctor, who advised her to undergo Hysterectomy operation, for removal of “Multiple Fibroids with Endometric Cyst of Ovary”. The advice was accepted and the said procedure was conducted by the treating doctor on 15.7.2008. She was discharged from the Hospital on 4.8.2008. After few months, the health of the Complainant started deteriorating, inasmuch as the Blood Pressure continued to remain on the higher side and she had constant tendency for vomitting. When she consulted a local doctor, she was advised blood tests. The said tests revealed that her kidney was not functioning satisfactorily. She was advised to consult a Urologist. On being advised further diagnostic tests, it was confirmed that her left kidney was not functioning properly, for which she needed better management at a Hospital having nuclear medicine facility. Accordingly, the Complainant was referred to Amrita Institute of Medical Sciences at Edapilly (Kerala). She was admitted in the said Hospital on 9.5.2009. On being advised, operation for removal of the damaged kidney was conducted. The doctors at the said Hospital opined that her left kidney got damaged due to negligent handling of the Hysterectomy procedure, conducted by Petitioner No.3 at the Petitioner Hospital on 15.3.2008. 3. Being aggrieved by the deficiency on the part of the treating doctor in performing the Hysterectomy surgery, resulting in loss of one kidney, the Complainant filed the Complaint, claiming a compensation of ₹16,50,000/- on which the afore-noted order was passed by the District Forum. 4. Being aggrieved, the Petitioners herein as also the Insurance Company, preferred separate Appeals before the State Commission. On re-appraisal of the entire evidence, including the oral evidence of three witnesses by the Complainant and two by the Opposite Parties, the State Commission has come to the conclusion that the loss of one kidney of the Complainant was directly attributable to the procedure conducted by the treating doctor, namely, Opposite Party No.3. Affirming the finding of negligence on the part of the treating doctor and rejecting his defence that damage to the kidney was on account of negligence on the part of the Complainant in not getting her condition reviewed periodically, the State Commission observed thus : “It can be seen from Ext.A2 the discharge summary issued from the first Opposite Party hospital that the left ureter was injured while introducing ureteric catheter and the injury was sutured. Ureteric drain was put. There was leakage of urine. Therefore retrograde stenting was done 30.07.2008. The patient was discharged with stent inside. Apart from prescribing medicines he was advised review after six weeks and stent removal after two months. It is not disputed that the patient went for review as well as stent removal. The question is whether despite advice to consult further the complainant has desisted from periodically reviewing her status with regard to renal function as contended. From neither Ext.A2 or from Ext.X1 medical records produced from the first Opposite Party hospital, it can be seen that the complainant was advised periodical follow up after stent removal. So the contention that the complainant refrained from periodical urological review after stent removal despite advise to that effect, is not supported by any record issued or produced from the first Opposite Party hospital. The result is though the ureteric injury can be justified as an accepted medical complication during hysterectomy, the fact remains that the patient was not properly advised as to the periodical follow up which led to the complications which according to the Opposite Parties themselves could have been avoided had there been proper follow up. The fact that retroperitoneal fibrosis developed in the left ureter which was injured shows that the injury was the direct reason for the disease. It is in the above background the consumer forum came to the conclusion that the hospital is purposefully hiding relevant facts and failed to properly monitor and manage the ureteric injury. This directly resulted in the loss of left kidney of the complainant.” (Emphasis added) 5. Hence, this Revision Petition. 6. As the Insurance Company has already discharged its liability to the extent of the insured amount i.e. ₹5,00,000/- in terms of the impugned order, it has accepted the order. 7. We have heard learned counsel appearing for the parties. 8. The main thrust of the arguments advanced by learned Senior Counsel appearing for the Petitioners is that at best it was a case of contributory negligence inasmuch as the Complainant had not been reporting for regular check-up, as advised in the Discharge Slip. Learned counsel has made a valiant attempt to pursuade us to re-appraise the evidence, led by the parties before the Fora below, in particular, the affidavit filed by one Dr. A.S. Albert, working as a Urologist in the Petitioner Hospital. 9. Having carefully gone through the ‘proof affidavit’ filed by the said Doctor and other material on record, we are unable to persuade ourselves to agree with the Learned Counsel. Apart from the fact that there is no specific ground in the Petition, we do not find any perversity in the afore-noted concurrent finding of fact recorded by the Fora below, warranting interference with the impugned order in exercise of our Revisional jurisdiction The afore-extracted observations leave little doubt in our mind that the loss of kidney of the Complainant, at a young age, was directly attributable to the injury caused during the Hysterectomy procedure conducted by Petitioner No.3. Under the circumstances, even the quantum of compensation for loss of kidney, a vital part of the body, cannot be said to be excessive or unreasonable, more so when its substantial part has already been borne by the Insurance Company. Nevertheless, on facts at hand, we feel that the interest awarded on the said compensation is slightly on the higher side. In our view the interests of justice would be sub-served by reducing the rate of interest from 10%, as awarded, to 6% per annum. 10. Accordingly, while affirming the impugned order with regard to the finding of deficiency in service on the part of the Petitioners as also on the quantum of compensation, we direct that the Complainant shall be entitled to interest on the amount of compensation, at the rate of 6% per annum, for the period mentioned in the impugned order. The Revision Petition stands disposed of in the above terms, leaving the parties to bear their own costs. Top

Hospital penalised for the negligence of the doctor

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

REVISION PETITION NO. 2288 OF 2015
(Against the Order dated 27/02/2015 in Appeal No. 640/2013 of the State Commission Kerala)

MATHA HOSPITAL & 4 ORS.
REP BY ITS MANAGING DIRECTOR, MR.SABU SEBASTIN, MATHA HOSPITAL, THELLAKOM,
KOTTAYAM
KERALA ...........Petitioner(s)
Versus
1. LATHIKA & ANR.
W/O VENUGOPOAN, KONATHUSSERIL HOUSE, P.O VARANAD, CHERTHALA,ALAPPUZHA,
KERALA - 688539
2. UNITED INDIA, INSURANCE CO LTD.,
DIVISIONAL OFFICE, GEETHA TRADE CENTRE, P.B NO-210 NAGAMPADOM,
KOTTAYAM
KERALA - 686001 ...........Respondent(s)

BEFORE:
    HON'BLE MR. JUSTICE D.K. JAIN,PRESIDENT
    HON'BLE MRS. M. SHREESHA,MEMBER

Dated : 15 Sep 2016

ORDER

       By this Revision Petition, the Hospital, viz., Matha Hospital, its Directors and the treating doctor, Opposite Party No.3 in the Complaint, question the correctness and legality of the order dated 27.2.2015, passed by the Kerala State Consumer Disputes Redressal Commission at Thiruvananthapuram (for short “the State Commission”), in First Appeals No.640/2013 and 14/2014. By the impugned order, the State Commission, while allowing the Appeal of the Insurance Company, Opposite Party No.6 in the Complaint, has otherwise affirmed the order dated 12.9.2013 passed by the District Consumer Disputes Redressal Forum, Kottayam (for short “the District Forum”) in CC No.122/2010, on merits. By the said order, the District Forum, had concluded that there was negligence on the part of the treating doctor, Petitioner No.3 herein, in conducting the Hysterectomy by key hole procedure, had directed the Insurance Company, to pay to the Complainant a sum of ₹10,00,000/- as compensation with interest at the rate of 10% from the date of filing of the Complaint till realization, besides costs quantified at ₹5,000/-.

2.    Succinctly put, the occasion to file the Complaint arose under the following circumstances :

       Since the Complainant was suffering from continuous stomach pain and bleeding, she consulted Petitioner No.3 doctor, who advised her to undergo Hysterectomy operation, for removal of “Multiple Fibroids with Endometric Cyst of Ovary”. The advice was accepted and the said procedure was conducted by the treating doctor on 15.7.2008. She was discharged from the Hospital on 4.8.2008. After few months, the health of the Complainant started deteriorating, inasmuch as the Blood Pressure continued to remain on the higher side and she had constant tendency for vomitting. When she consulted a local doctor, she was advised blood tests. The said tests revealed that her kidney was not functioning satisfactorily. She was advised to consult a Urologist. On being advised further diagnostic tests, it was confirmed that her left kidney was not functioning properly, for which she needed better management at a Hospital having nuclear medicine facility. Accordingly, the Complainant was referred to Amrita Institute of Medical Sciences at Edapilly (Kerala). She was admitted in the said Hospital on 9.5.2009. On being advised, operation for removal of the damaged kidney was conducted. The doctors at the said Hospital opined that her left kidney got damaged due to negligent handling of the Hysterectomy procedure, conducted by Petitioner No.3 at the Petitioner Hospital on 15.3.2008.

3.    Being aggrieved by the deficiency on the part of the treating doctor in performing the Hysterectomy surgery, resulting in loss of one kidney, the Complainant filed the Complaint, claiming a compensation of ₹16,50,000/- on which the afore-noted order was passed by the District Forum.

4.    Being aggrieved, the Petitioners herein as also the Insurance Company, preferred separate Appeals before the State Commission. On re-appraisal of the entire evidence, including the oral evidence of three witnesses by the Complainant and two by the Opposite Parties, the State Commission has come to the conclusion that the loss of one kidney of the Complainant was directly attributable to the procedure conducted by the treating doctor, namely, Opposite Party No.3. Affirming the finding of negligence on the part of the treating doctor and rejecting his defence that damage to the kidney was on account of negligence on the part of the Complainant in not getting her condition reviewed periodically, the State Commission observed thus :

“It can be seen from Ext.A2 the discharge summary issued from the first Opposite Party hospital that the left ureter was injured while introducing ureteric catheter and the injury was sutured. Ureteric drain was put. There was leakage of urine. Therefore retrograde stenting was done 30.07.2008. The patient was discharged with stent inside. Apart from prescribing medicines he was advised review after six weeks and stent removal after two months. It is not disputed that the patient went for review as well as stent removal. The question is whether despite advice to consult further the complainant has desisted from periodically reviewing her status with regard to renal function as contended. From neither Ext.A2 or from Ext.X1 medical records produced from the first Opposite Party hospital, it can be seen that the complainant was advised periodical follow up after stent removal. So the contention that the complainant refrained from periodical urological review after stent removal despite advise to that effect, is not supported by any record issued or produced from the first Opposite Party hospital. The result is though the ureteric injury can be justified as an accepted medical complication during hysterectomy, the fact remains that the patient was not properly advised as to the periodical follow up which led to the complications which according to the Opposite Parties themselves could have been avoided had there been proper follow up. The fact that retroperitoneal fibrosis developed in the left ureter which was injured shows that the injury was the direct reason for the disease. It is in the above background the consumer forum came to the conclusion that the hospital is purposefully hiding relevant facts and failed to properly monitor and manage the ureteric injury. This directly resulted in the loss of left kidney of the complainant.”

(Emphasis added)

5.    Hence, this Revision Petition.

6.    As the Insurance Company has already discharged its liability to the extent of the insured amount i.e. ₹5,00,000/- in terms of the impugned order, it has accepted the order.

7.    We have heard learned counsel appearing for the parties.

8.    The main thrust of the arguments advanced by learned Senior Counsel appearing for the Petitioners is that at best it was a case of contributory negligence inasmuch as the Complainant had not been reporting for regular check-up, as advised in the Discharge Slip. Learned counsel has made a valiant attempt to pursuade us to re-appraise the evidence, led by the parties before the Fora below, in particular, the affidavit filed by one Dr. A.S. Albert, working as a Urologist in the Petitioner Hospital.

9.    Having carefully gone through the ‘proof affidavit’ filed by the said Doctor and other material on record, we are unable to persuade ourselves to agree with the Learned Counsel.   Apart from the fact that there is no specific ground in the Petition, we do not find any perversity in the afore-noted concurrent finding of fact recorded by the Fora below, warranting interference with the impugned order in exercise of our Revisional jurisdiction The afore-extracted observations leave little doubt in our mind that the loss of kidney of the Complainant, at a young age, was directly attributable to the injury caused during the Hysterectomy procedure conducted by Petitioner No.3. Under the circumstances, even the quantum of compensation for loss of kidney, a vital part of the body, cannot be said to be excessive or unreasonable, more so when its substantial part has already been borne by the Insurance Company. Nevertheless, on facts at hand, we feel that the interest awarded on the said compensation is slightly on the higher side. In our view the interests of justice would be sub-served by reducing the rate of interest from 10%, as awarded, to 6% per annum.

10. Accordingly, while affirming the impugned order with regard to the finding of deficiency in service on the part of the Petitioners as also on the quantum of compensation, we direct that the Complainant shall be entitled to interest on the amount of compensation, at the rate of 6% per annum, for the period mentioned in the impugned order.

       The Revision Petition stands disposed of in the above terms, leaving the parties to bear their own costs.