Appeal filed on 15



|Appeal filed on 25.5.2005 |

|Decided on 25.10.2006 |

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE

Dated the 25th day of October, 2006

PRESENT

Hon’ble Mr.Justice Chandrashekaraiah, President

Smt. Rama Ananth, Member

Sri M.Shama Bhat, Member

APPEAL NO.714/2005

Sri B.N.RAJESH,

Son of Sri Basavaraju,

Residing at Kallahalli, APPELLANT

Mandya (Complainant before the District Forum)

(By Sri K.M.Sanathakumara, Advocate)

VERSUS

1. Dr. MADAPPA,

Specialist in Nephrology & Urology,

Room No.104,

J.S.S.Hospital,

Ramanuja Road,

Mysore

2. THE ADMINISTRATIVE OFFICER,

J.S.S.Hospital,

Ramanuja Road, RESPONDENTS

Mysore (Opposite Parties before the District Forum)

(Respondent No.1; served,

unrepresented,

Sri M.R.C.Ravi, Advocate for

Respondent No.2)

O R D E R

Hon’ble Mr.Justice Chandrashekaraiah:

In this case a patient was made to undergo four surgeries for removal of ‘kidney stone’ where a single simple surgery would have been sufficient, due to negligence of the Doctor while conducting the first operation.

2. This Appeal is by the Appellant (hereinafter referred to as the “Complainant”) challenging the Order of the District Forum dismissing his Complaint.

3. The facts of the case are as follows:

The Complainant approached Respondent No.1 (hereinafter referred to as “OP-1”) on 23.1.2002 with the complaint of stomach pain. OP-1 on clinical examination advised the Complainant to go for Scanning and, accordingly, the Complainant subjected himself for Scanning and thereafter showed the Scanning Report to OP-1. OP-1 on examining the Scanning Report informed the Complainant that he has to undergo operation, since a stone was formed in his kidney. Accordingly, the Complainant got admitted to OP-2 Hospital. After the admission, OP-1 conducted the operation on 26.2.2002 and said to have inserted a ‘D.J.Stent’. After three days, the Complainant was asked to go for X-ray and, accordingly X-ray was taken. On going through the X-ray, again OP-1 informed the Complainant that there is still residue of small stone in the kidney and advised him to go for second operation and, accordingly, the second operation was conducted on 5.3.2002. Thereafter, the Complainant was discharged on 8.3.2002. Again on 1.4.2002, the Complainant met OP-1 who advised for urine test and, accordingly, on 4.4.2002, urine test was conducted. But the Complainant inspite of the two operations did not get any relief as the stomach pain was persisting. Again, the Complainant approached OP-1 on 15.9.2003. OP-1 on examination advised the Complainant to go for Scanning, which the Complainant did. After examining the Scanning Report, OP-1 again advised the Complainant to go for a third operation stating that there was pipe in the stomach, which was not removed during the earlier operation. In view of the said advise, the Complainant got admitted to OP-2 Hospital on 17.9.2003. After the admission, OP-1 conducted the third operation on 26.9.2003 and informed the Complainant that the pipe that was inserted has been removed and he was discharged on 28.9.2003. Thereafter, as there was again severe stomach pain, the Complainant approached Sanjo Hospital at Mandya on 7.10.2003. On the advise of the Doctor in the said Hospital, a Scanning was conducted on 8.10.2003 at Ramakrishna Scanning Centre at Mandya. After going through the Scanning Report, Dr. K.S.Venugopal of Sanjo Hospital informed the Complainant that there was a pipe in the stomach and advised him to go for an operation for removal of the pipe. Accordingly, the Complainant was admitted to the said Hospital on 21.10.2003 and he was operated on 22.10.2003 by Dr.Venugopal and in the said operation, the Doctor has removed the pipe and gave the same to the Complainant and, thereafter, on 25.10.2003 the Complainant was discharged from the said Hospital. According to the Complainant, all the subsequent operations which he had undergone were due to the negligent way of conducting the first operation by OP-1 in OP-2 Hospital. Therefore, the Complainant filed Complaint before the District Forum for a direction to the OPs to pay compensation of Rs.3,00,000/- with interest at 18% per annum.

4. OP-1 filed his version before the District Forum denying the negligence alleged by the Complainant in his Complaint. According to OP-1 he explained to the Complainant about the complications that may arise in the event if the stent inserted was not removed within six months from the date of the insertion and also advised the Complainant to go for regular check up when he was discharged from the Hospital on 8.3.2003. The further case of OP-1 is that on 1.4.2002 he advised the Complainant to approach him within time for removal of the stent. But the Complainant failed to appear within six months and, in fact, he approached him on 15.9.2003. On 15.9.2003, on examination, he advised the Complainant to get himself admitted to the Hospital on 17.9.2003 and after the Complainant was admitted he was subjected to surgery on 26.9.2003 as it was found that a large stone had developed at the lower end of the stent and continuing into the ureter and it was found not possible to remove the stent as the whole stent of 26 cms. was like a long stone with two large stones at the bladder and another at the right kidney. He has further stated in his version that by using lithotripsy, the bladder stone was pressed, fragmented and removed and by using arthroscopy and lithotripsy the whole length of uretoric stone around stent was fragmented and later kidney stone was fragmented and the stent was released from the stone and this surgery took nearly two hours to remove the old stent and as there was puss, severe inflammation and bleeding from mucosa, all the stones fragments could not be removed and to save the life of the Complainant a new Stent was introduced but it did not enter the kidney as there were number of stone fragments in the ureter and right kidney and, therefore, the stent was left in the ureter with the other end in the bladder; that the Complainant was explained all these facts and he was advised to approach OP-1 after a week and that the Complainant was discharged on 28.9.2003 but he did not turn up for follow up action. The further case of OP-1 is that he conducted the surgical procedure as a prudent Doctor and he was not negligent in his duty and, as such, he is not liable to pay any compensation.

5. OP-2 by filing a Memo before the District Forum adopted the version filed by OP-1.

6. Both the parties filed Affidavits by way of evidence before the District Forum and produced documents which were marked as Exhibits. Both the parties also delivered Interrogatories and to the said Interrogatories, both the parties also filed Replies.

7. The District Forum after affording opportunity to both the parties to adduce evidence and after hearing them has passed the impugned order dismissing the Complaint.

8. The point that arises for consideration in this Appeal is whether the District Forum is justified in dismissing the Complaint of the Complainant.

9. The facts that the Complainant was admitted to OP-2 Hospital and OP-1 conducted three operations are not disputed. It is also not disputed that the Complainant was admitted to Sanjo Hospital at Mandya and in the said Hospital, Dr. Venugopal conducted the fourth operation for the removal of the stent. According to the Complainant, if OP-1 had conducted the first operation as a prudent Doctor there would not have been any complications which made the Complainant to undergo three operations. No doubt, the Complainant in his Complaint has stated that OP-1 when he conducted the first operation on 27.2.2002 informed him that Stent was inserted. From the records of the Hospital and Summary which is at page 64 of the Hospital records it is seen that there is no mention about insertion of Stent. After the first operation, the Complainant was discharged from the Hospital on 8.3.2002. It is also not disputed that the Complainant could not get any relief after the first operation as the stomach pain still persisted. As per the Hospital records, the second operation was conducted on 5.3.2002. In the Summary of the Operation it is mentioned that ‘D.J.Stenting was done’. From these records what is seen is that no doubt the first operation was conducted on 26.2.2002. But there is no mention of insertion of Stent. But in the second operation there is a mention to the effect that Stent was inserted. If at all if there was insertion of Stent during the first operation conducted on 26.2.2002 there would have been a mention to that effect in the Hospital records. OP-1 also does not say either in the pleadings or in the evidence that he has inserted Stent on 26.2.2002. The Complainant was asked to go for X-ray. Accordingly, the Complainant was subjected to X-ray on 2.3.2002, i.e., three days prior to the second operation. The said X-ray is marked as Exhibit ‘C-18’. The said X-ray does disclose the presence of the Stent. If really OP-1 had not inserted the Stent on 26.2.2002, then there could not have been any Stent, but it was found in the X-ray taken on 2.3.2002. According to OP-1 he inserted the Stent on 5.3.2002. This statement, in our view, cannot be believed because the X-ray dated 2.3.2002 indicates the presence of the Stent.

10. The further defence of OP-1 is that when the Complainant was discharged on 8.3.2002, he explained about the insertion of Stent to the Complainant and advised him to come for a regular follow up and informed him about the consequences if Stent was not removed. This averment of OP-1 is reflected in the records of the Hospital. But OP-1 has not advised the Complainant within how many days or months the Complainant was required to come for removal of the Stent. If a patient is not informed as to when he is required to meet the Doctor for check up, naturally the patient would not be knowing when he is required to meet the Doctor. Ultimately, as the Complainant could not get any relief even after the second operation, he again approached OP-1 in the month of September, 2003. OP-1 on examination again advised the Complainant to get himself admitted to OP-2 Hospital for the third operation. Accordingly, OP-1 conducted the third operation on 26.9.2003. But even after the third operation, the Complainant did not get any relief. According to OP-1, the Complainant approached him on 15.9.2003 after a gap of 1 ½ years from the date of insertion of Stent and on examination he conducted the third operation on 26.9.2003. But it was not possible for OP-1 to remove the Stent as, according to him, the whole stent of 26 cms., was like a long stone with two large stones at the bladder and another at the right kidney; that by using lithotripsy, the bladder stone was pressed, fragmented and removed and by using arthroscopy and lithotripsy the whole length of uretoric stone around stent was fragmented and later kidney stone was fragmented and the stent was released from the stone and this surgery took nearly two hours to remove the old stent and as there was puss, severe inflammation and bleeding from mucosa, all the stones fragments could not be removed and to save the life of the Complainant a new Stent was introduced but it did not enter the kidney as there were number of stone fragments in the ureter and right kidney and, therefore, the stent was left in the ureter with the other end in the bladder; that the Complainant was explained all these facts and he was advised to approach OP-1 after a week. The summary in respect of the third operation is available at page 95 of the Hospital records. From this document it is seen that the Stent was removed after the Lithotripsy. But OP-1 in his Version and the Evidence has stated that as there was puss, severe inflammation and bleeding from mucosa, all the stones fragments could not be removed and to save the life of the Complainant a new Stent was introduced but it did not enter the kidney as there were number of stone fragments in the ureter and right kidney. The Hospital records no doubt state that after the removal of the Stent, the same was placed half way. But the records do not disclose that after removal of the old Stent, a new Stent was inserted. If really the Complainant had been informed to come on a specific date for the purpose of removal of Stent, in all probability he would have approached OP-1. The records of the Hospital do not speak that the Complainant was informed about the date on which he was required to meet OP-1 for removal of Stent. If OP-1 had actually removed the Stent after the third operation, in all probability there was no need for the Complainant to go for the fourth operation. The Complainant has examined Dr. Venugopal who conducted the fourth operation. The said witness has stated in his evidence that he conducted the operation on the Complainant and removed the Stent and the Complainant was getting stomach pain due to the presence of the Stent in the body. He has further stated that after the removal of the Stent, the Complainant was alright. When the Stent itself was the cause for the stomach pain, there was no need for OP-1 to insert another Stent while conducting the third operation. According to OP-1 to save the life of the Complainant a new Stent was introduced but it did not enter the kidney as there were number of stone fragments in the ureter and right kidney and for that reason the stent was left in the ureter with the other end in the bladder. If the case of OP-1 that a new Stent was put were to be accepted, there would not have been any subsequent complications. Even according to OP, he could not insert the Stent properly as there were stone fragments. Therefore, it was for OP-1 to explain the way in which the Stent was inserted during the third operation. In the instant case, OP-1 made the Complainant to undergo four surgeries, though in the normal course one surgery would have served the purpose. In these advanced days, stones from kidney are removed by a simple single surgery. In our view, but for the negligence of OP-1 in conducting the operation, there was no need for the Complainant to undergo the subsequent three surgeries. Therefore, the District Forum, in our view, has committed an error in dismissing the Complaint.

11. The Complainant as stated above has undergone four Surgeries and he appears to have spent considerable amount for his treatment. Further, the Complainant was made to suffer due to stomach pain and the complications which developed subsequent to the first operation. Therefore, taking into consideration these facts, in our view, awarding a sum of Rs.1,00,000/- as compensation in favour of the Complainant would meet the ends of justice.

12. In the result, we pass the following Order:

1) The Appeal is allowed. The impugned order is set aside.

2) The Complaint filed by the Complainant before the District Forum is allowed in part.

3) The OPs are directed to pay Rs.1,00,000/- to the Complainant jointly and severally within two months from today.

4) If the OPs fail to pay the amount as directed above, the OPs shall be liable to pay interest on the said sum at the rate of 9% per annum from the date of the Complaint filed before the District Forum till realization.

5) OP-1 is also directed to pay Rs.5,000/- to the Complainant towards the costs of these proceedings.

MEMBER MEMBER PRESIDENT

RMK-

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