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NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION, NEW DELHI
Hon’ble Mr. Justice M.B. Shah, President & Dr. P.D. Shenoy, Member
VARADHA S. NAIR—Complainant
versus
DR. REMANI N. RAJAN & ORS.—Opposite Parties
Original Petition No. 123 of 1997—Decided on 30.5.2005
For the Complainant :Mr. Madhu, Ms. Shakun Sharma for M/s. P.H. Prekh & Co., Advocates.
For the Opposite Party Nos. 1 and 3 :Mr. Virendar Goswami for M/s. Dutt & Menon, Advocates.
For the Opposite Party No. 2 :Mr. B.V. Deepak, Mr. Balraj Bal and Mr. N. Rajan, Advocates.
The main legal point established in the judgment is the liability of the hospital and doctors for gross medical mistakes and negligence in performing an unnecessary hysterectomy, resulting in severe medical complications for the complainant.
Headnote:
Medical Negligence - Hysterectomy - Consumer Protection Act, 1986 - Section 2(1)(o), Section 2(1)(g), Section 2(1)(o)(ii), Section 2(1)(o)(iii), Section 2(1)(o)(iv), Section 2(1)(o)(v), Section 2(1)(o)(vi), Section 2(1)(o)(vii), Section 2(1)(o)(viii), Section 2(1)(o)(ix), Section 2(1)(o)(x), Section 2(1)(o)(xi), Section 2(1)(o)(xii), Section 2(1)(o)(xiii), Section 2(1)(r), Section 2(1)(g), Section 2(1)(o), Section 2(1)(o)(i), Section 2(1)(o)(ii), Section 2(1)(o)(iii), Section 2(1)(o)(iv), Section 2(1)(o)(v), Section 2(1)(o)(vi), Section 2(1)(o)(vii), Section 2(1)(o)(viii), Section 2(1)(o)(ix), Section 2(1)(o)(x), Section 2(1)(o)(xi), Section 2(1)(o)(xii), Section 2(1)(o)(xiii), Section 2(1)(r), Section 2(1)(g)
Fact of the Case:
The complainant, a healthy woman, underwent an uncalled for hysterectomy resulting in severe medical complications, rendering her in a vegetative state. The hospital and doctors were held liable for gross medical mistakes.
Finding of the Court:
The court found that there was no emergent necessity for hysterectomy, and the surgery performed was unnecessary and led to severe medical complications. The hospital and doctors were found to be grossly negligent in their duties.
Issues: The main issues were whether there was an emergent necessity for hysterectomy, the adequacy of pre-operative and post-operative care, and the negligence of the hospital and doctors in performing the surgery.
Ratio Decidendi: The court held that there was no emergent necessity for hysterectomy, and the surgery performed was unnecessary and led to severe medical complications. The hospital and doctors were found to be grossly negligent in their duties.
Final Decision: The complaint was allowed, and the hospital and doctors were jointly and severally held liable to pay compensation of Rs. 9.5 lakhs with interest and costs to the complainant.
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 of R-1 (since deceased) and thereby opposite party No. 3 Hospital would be liable?
Complaint
2. 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), Ernakulam for a regular checkup. 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-anaesthetic checkup by the physician of respondent No. 3, (M/s. Vijaya Hospital). Unfortunately, complainant underwent Hysterectomy on 19.7.1991, which gave opportunity to respondent 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 vegetative state.
Facts as alleged by the complainant:
3. 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-per-cent 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 followup for six months. She used to undergo checkup once in six months which consists of colonoscopy, endoscopy, if advised by Doctor and other tests like barium enemia, etc. at Calicut Medical College by Dr. Vinayachandran Nair. All these results were shown to Dr. Krishnan Nair at Trivandrum and Dr. Karthikeyan at Calicut. They opined that she was perfectly normal and she was only to follow checkup.
4. In the year, 1991, when she went to Calicut for routine checkup, Dr. Vinaya-chandran 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. Remani Rajan (R-1) who is a Gynaecologist, during the next checkup in July, 1991.
5. On 7.7.1
