1. THE case of the complainant Mrs. Lakshmi Rajan is that she is a married woman, aged about 40 years. She noticed the development of a painful lump in her breast otherwise she was quite alright. She consulted a Physician Dr. P.K. Srinivasan. He referred her to the Malar Hospital the 1st opposite party for a thorough examination, diagnosis and treatment. THE complainant was examined on 25.7.1992 by a Physician of the Hospital who prepared the Consultation Report. This report was signed by Dr. Ravichandra Padmanabhan the 2nd opposite party who is the Consultant Surgeon employed by the 1st opposite party. THE painful lump was diagnosed to be "Fibro Adenoma" of the left breast and the complainant was advised Mammogram and Excision Biopsy. THE Mammogram was done on 31.7.1992 which showed "two well defined nodules in the left breast features of Fibro Adenoma." THE complainant was then admitted in the Malar Hospital on 3.8.1992 for a Surgery to remove the Fibro Adenoma. On 4.8.1992 an ultra- sound study of the whole abdomen was done which indicated "a normal study of the whole abdomen". This ultra-sound study revealed the uterus of the complainant to be anteverted and ovaries normal and there was no indication of a "prolapsed"or descended uterus which is exactly the opposite of an anteverted condition. THE complainant was operated upon by Dr. Ravindra Padmanabhan on 5.8.1992. After the complainant regained her consciousness the complainant was informed, to her shock that her uterus had been removed. She was not told before about removal of uterus. THE complainant started suffering from severe complications in the post operative period. THEre was accumulation of a great amount of pus in her vagina and in the area of surgery. She was suffering from severe pain in her body and could not move her body or her limbs. She could not defecate or urinate. In spite of the persistence of the severe complications the complainant was discharged from the Hospital on 10.8.1992. THE said complications occurred because of the surgery continued to persist. On 18.8.1992 the complainant went back to the Malar Hospital and met the 2nd opposite party. After examining her the 2nd opposite party referred her to his wife Dr. Kausalya who is an Obstetrician and Gynaecologist. After examining the patient the said Dr. Kausalya expressed unhappiness regarding the manner in which her husband treated the patient. Without treating the patient Dr. Kausalya sent back her to Malar Hospital. THEre the 2nd opposite party Doctor tried to remove the pus even without administering general anaesthesia on account of which she suffered severe pain. On 19.8.1992 the 2nd opposite party administered general anaesthesia and removed the pus. Even though 8 months have lapsed since the operation, the abovesaid complications still persist. THE 2nd opposite party Doctor is guilty of grave professional negligence and misconduct which constitutes deficiency in service on his part. THE 1st opposite party is vicariously liable for that. THE 2nd opposite party Doctor, was only a General Surgeon and therefore he was not qualified to perform hysterectomy or Oopherectomy. THEre was no complaint of prolapsed uterus. Even if there was 2nd degree prolapse as indicated in the Discharge Summary, it did not warrant a radical surgery such as hysterectomy which is usually done in the case of third degree prolapse. For removal of uterus and ovary pre-vaginal examination is imperative but that has not been done. It is unusual that the 2nd opposite party did not examine the complainant before Surgery. It is the further case of the complainant that she was not given proper bed-pan, urinals, surgical gloves, masks, etc., which every Hospital has to provide free of cost. Instead she was asked to pay for all these equipments and several drugs and medicines which were unnecessary. On these allegations the complainant has prayed for a direction to the opposite party to pay a sum of Rs. 10,00,000/- for the mental agony, pain and suffering and a sum of Rs. 1,50,000/- for expenditure incurred.
2. THE 1st opposite party Malar Hospital contended that the 2nd opposite party Doctor is not employed by the 1st opposite party and as such this opposite party is not vicariously liable if at all there was any deficiency in service on the part of the 2nd opposite party in the treatment of the complainant. THE 1st opposite party Hospital is providing only services as required by the 2nd opposite party such as provision of beds, nursing facilities, diagnosis facilities, food and equipments for surgery and also medicines and for providing such services this opposite party is entitled to charge. THEre was no negligence in rendering these services and therefore the complaint is liable to be dismissed as against the 1st opposite party.
The 2nd opposite party in his written version contended that the patient was referred to him on 20.7.1992 by Dr. P.K. Srinivasan for surgery of the lump and hysterectomy regarding which she had consulted her Gynaecologist. Dr. Srinivasan has also requested the 2nd opposite party to combine the two procedures in one sitting to reduce the expenses considering the financial condition of the family. Before the complainant underwent Surgery both the complainant and her husband had consented for the operation in writing on 4.8.1992. Thus the complainant was very well aware about the proposed removal of the uterus. The whole intention of the complaint seems to blackmail the opposite parties. This opposite party has denied that there was any mistake done during the pre- operative period or during post-operative period. This opposite party contends that he was most competent to perform uterus removal operation. In fact even today many leading Gynaecologists call him during operations to ad vise them in case of technical complications. All allegations made against this opposite party in the complaint are false and without any basis. It is not admitted that the complainant is suffering from any physical ailment and she is put to strict proof of the allegations.
The points that arise for consideration are:
(1) Whether the 1st opposite party or the 2nd opposite party or both had been guilty of negligence in service as alleged by the complainant ? (2) To what amount of compensation if any the complainant can be granted?
3. POINT No. 1: The main case of the complainant Mrs. Lakshmi Rajan is that the 2nd opposite party Dr. Ravindra Padmanabhan while he was performing an operation on her for a lump in the left breast, removed her uterus when there was no necessity for the same and thus he was in gross negligence in his service as a Surgeon. It is also the case of the complainant that the said Dr. Ravindra Padmanabhan was not competent to do the uterus operation and there was also post-operative negligence on his part. The 2nd opposite party would deny that there was any negligence on his part and he was not competent to do the uterus operation as alleged by the complainant. During the course of the arguments before us, to specific questions by this Commission the learned Counsel appearing for the complainant stated that he was not pressing the allegation that the 2nd opposite party was not competent to perform uterus operation and that there was post operative negligence and carelessness on this part. Therefore the only point that remains for consideration is whether the removal of uterus by the 2nd opposite party was an act of negligence of his. It is pleaded on behalf of the complainant that the 2nd opposite party has not done any examination of the complainant with regard to uterus and it appears that examination has been done with regard to the lump in the left breast and as such there was no vital cause of the removal of the uterus. From the pleadings and the evidence it appears that the complainant patient Lakshmi Rajan was referred to 2nd opposite party Doctor by one Dr. Prof. P.K. Srinivasan. The 2nd opposite party Doctor has filed Ex. Bl dated 20.7.1992 as the reference letter of Dr. Srinivasan. Though the complainant would submit that this letter Ex. Bl is a fabricated one, it is not in dispute that it is a fact that the complainant was referred to by Dr. Srinivasan. Ex. Al is the Consultation Report dated 25.7.1992 prepared by the 2nd opposite party. This report shows the findings with regard to complaints in the breast and nothing about the uterus or stomach. Ex. A2 is the Mamogram Report dated 31.7.1992 of the Malar Hospital the 1st opposite party. This report also shows about nodules in the left breast and nothing about any defects in the uterus. Ex. A3 dated 4.8.1992 is the ultra sound Study of the whole abdomen and the material portion of this report reads thus:
"The uterus is anteverted measured 10.4 x 5.4 cms. and appears bulky. The endometrium is slightly thickened. (premenstrual phase). The myometrium is normal. The cervixand vagina are normal."
After these reports, as said above the operation was performed on 5.8.1992. According to the complainant, from the said 3 reports it is clear that there was no defect in the uterus and there was no necessity for the removal of the same hut still the 2nd opposite party Doctor has removed the uterus. The complainant has examined one Dr. R.S. Sridhar as PW 1 who is a M.B.B.S. General Practitioner. His evidence is to the effect that from what is stated in Exs. Al to A3 uterus operation on the complainant was not necessary. PW 1 also says that he has examined the complainant about 4 months after the operation. According to PW 1 there is nothing in Ex. A3 Ultra Sound Study, indicating a prolapsed uterus and according to this report the uterus was anteverted which means that the uterus was in its normal position which condition is exactly opposite to prolapsed condition. He would further state that the said anteverted position of the uterus does not warrant the removal of the uterus or ovary.
As per Ex. A-4 Discharge Summary the diagnosisis "Fibroadenoma Left Breast. Prolapse Uterus - 2nd Degree, and Ex. A-5 Surgical Pathology Report reads that "The myometrium reveals well demarcated tumor composed of interlacing bundles of spindle cells with uniform cigal nuclei." But these Discharge Summary and Surgical Pathology Reports have been prepared subsequent to the operation i.e., on 10.8.1992 and according to the complainant these two documents Exs. A-4 and A-5 have been fabricated by the opposite parties mentioning the said words just to justify the uterus removal. This contention of the complainant cannot be rejected outright as unacceptable. The fact remains that there is nothing showing in the reports prepared prior to the operation namely Exs. A-l to A-3 that uterus removal was necessary. To this effect, as seen above, is the evidence of PW 1 Dr. Sridhar and nothing has been elicited in his cross-examination that would suggest that what he says is not correct. In fact, the 2nd opposite party Doctor who has been examined as RW 1, has himself admitted in his cross-examination that "the antiverted portion of uterus is one of the normal position."
The 2nd opposite party RW 1 would admit that he did not do vaginal examination prior to the operation and as the reasons therefor he would say that "(I) The patient''s complaints were clear and explicit, (2)The patient has already seen a Gynaecologist and was advised Hysterectomy, (3) This was corroborated by the letter from the family physician Dr. P.K. Srinivasan, and (4) In deference to the sensitivity of the lady patient." But as we have seen above Ex. A1 Consultation report clearly shows that there was complaints about breast only and nothing about uterus or stomach. As such, there is nothing showing that the patient complained to the 2nd opposite party Doctor anything about the uterus or stomach. RW 1 is unable to say which Gynaecologist examined the complainant and he would only say that a Gynaecologist report was shown to him and then it was taken back. In Ex. Bl reference letter of Dr. P.K. Srinivasan it is mentioned to the effect that the complainant was having "painful profuse bleeding P.V. for which she had said that she had consulted a Gynaecologist and had been advised Hysterectomy immediately." But even in this letter the Gynaecologist''s name has not been given and Dr. P.K. Srinivasan has not annexed any report of me Gynaecologist of his letter. The question is even if it is true that Ex. B1 is a letter of Dr. P.K. Srinivasan before the operation and not subsequently fabricated as stated on behalf of the complainant, can it be said that in view of that letter mere was no necessity for the 2nd opposite party to have his own independent examination since hysterectomy is a vital matter. In our view the 2nd opposite party Doctor should have had his own examination. Even if it can be argued that still the 2nd opposite party cannot be held to have been negligent, what stands much against him is Ex. A3 ultra sound study of the whole abdomen in which as we have already seen above nothing about any defect in the uterus was mentioned that warrants removal of uterus. We are strongly of the view that at least after the report Ex. B3 the Doctor should have examined the patient himself and have been sure about the position as to whether any uterus operation was necessary or not. The fourth reason given by the 2nd opposite party for not doing vaginal examination namely in deference to the sensitivity of the lady patient, we do not think that it is expected of a Surgeon to say so. It is argued on behalf of the 2nd opposite party that as evidenced by Ex. B2 dated 3.8.1992 the patient and her husband had consented to "Abdominal Hysterectomy Total" and this shows that the patient and her husband knew that uterus would be removed and if really the complainant had no defect in the uterus and there was no necessity for operation she and her husband would not have given such consent. It appears that the complainant and her husband had given consent, but only because they had given such a consent it cannot be taken that there was indeed a necessity for removal of the uterus. If a Doctor says that a particular operation has to be done, normally the patient or relations would give consent for the same. They are only laymen. Hence only because a patient or relations have given their consent for an operation it cannot be said that truely there was in fact necessity for operation.
4. ALL the above facts and circumstances discussed lead to the clear conclusion that without sufficient reasons negligently the 2nd opposite party has performed the operation of removal of uterus.
As regards the 1st opposite party Hospital their contention is that they had nothing to do with the treatment of the complainant, and the 2nd opposite party was only their Consultant and they have only supplied the Paraphernelea of the Hospital and as such no question of deficiency in service on their part arises. In this respect also the learned Counsel appearing for the complainant, during the Court of the arguments, stated that he was not pressing the complainant''s case against the 1st opposite party.
Point No. 2: The complainant is a lady of 40 years of age. She has no child. It is stated on behalf of the 2nd opposite party that at the time of consultation the patient had already passed the age of normally conceiving a child. But certainly she would have been hoping and praying that she should get a child. But now that the uterus had been removed, even that hope of the complainant is lost. Considering the entire circumstances of the case in our opinion a compensation of Rs. 2,00,000/- would be appropriate to meet the ends of justice.
5. IN the result, therefore, the 2nd opposite party is directed to pay to the complainant a sum of Rs. 2,00,000/- with in 3 months from to day. He is also directed to pay a sum of Rs. 2,000/- as costs of this proceedings. The complaint against the 1st opposite party is dismissed without costs. Complaint disposed of.
