R S Khatter vs M S Ramaiah Medical Teaching Hospital

1.THIS appeal is by the complainant challenging the Order of the District Forum dismissing his complaint.

THE facts in this case are as follows : The wife of the complainant (for short, the ''Patient'') was admitted to the opposite party (for short, the ''O.P.'') No. 1 Hospital on 16.5.1991 as she was advised to undergo an operation on 17.5.1991 on the advice of O.P. No. 2. On 17.5.1991, a ''Trial Vaginal Hysterectomy'' was conducted by O.P. No. 2. But the said operation was unsuccessful as the bleeding continued even after the operation. Therefore, the complainant requested O.P. No. 2 to consult an expert so that the life of the patient may be saved. Thereafter, one Dr. Gopal, a Physician, examined the patient and reported that the patient was suffering from acute Jaundice and had persistent vomiting. As the patient was suffering from Jaundice, O.P. No. 2 ought not to have conducted an operation for Vaginal Hysterectomy.

After coming to know that the patient was suffering from Jaundice, the second operation was conducted on 1.6.1991 for abdominal packing to stop bleeding. According to the complainant the patient died due to the negligence on the part of the Doctors working in O.P. No. 1 Hospital and, therefore, he filed the complaint before the District Forum claiming damages of Rs. 2,40,000 with cost.

O .P. No. 1 has filed its version denying the allegations made by the complainant in the complaint. According to the version of O.P. No. 1, the Doctor who examined the patient was of the opinion that the vaginal route was easy and, accordingly, O.P. No. 2 conducted the Trial Vaginal Hysterectomy in accordance with the procedure known to the medical jurisprudence. It is stated in the version that before removal of the Uterus, the operation is called ''Trial Vaginal Hysterectomy'' and after removal of the Uterus, it is called ''Vaginal Hysterectomy''. It is further stated that the Trial Vaginal Hysterectomy means ''Tentative Vaginal Hysterectomy'' and the said operation was conducted after explaining the nature and the purpose of the operation and also the risk involved in the operation to the patient and that after obtaining the consent from the complainant the operation was done. It is further stated that the patient was known Hypertensive and one Prof. M.G. Gopal had issued a Certificate on 8.5.1991, i.e., 9 days before the Vaginal Hysterectomy Operation to the effect that the patient was fit for operation. Thereafter, the Trial Vaginal Hysterectomy was done for the bleeding problem associated with an enlarged Uterus of 8 weeks size. In the version, the O.P. No. 1 has denied that the patient was suffering from Jaundice as on the date O.P. No. 2 conducted the operation and, therefore, according to O.P. No. 1, the complainant is not entitled for any relief as prayed in the complaint.

BOTH the parties have produced documents in support of their case. The complainant has examined himself as C.W. 2 and he was subjected to cross -examination. O.P. No. 2 also examined herself and she was subjected to cross -examination. The District Forum passed the impugned order dismissing the complaint holding that there is no negligence on the part of O.P. No. 2 in conducting the operation and the Hospital also has taken the necessary post operative care.

THE only question that arises for consideration is: Whether the District Forum is justified in dismissing the complaint of the complainant?

THE fact that the patient was admitted to O.P. No. 1 Hospital on 16.5.1991 and O.P. No. 2 conducted the Trial Vaginal Hysterectomy on 17.5.1991 is not disputed. According to the complainant, the patient was suffering from Jaundice and without conducting any test to ascertain whether the patient was suffering from Jaundice as on the date of the operation, O.P. No. 2 had conducted the operation, which ultimately resulted in taking away the life of the patient. The further case of the complainant is that on 17.5.1991, the patient was operated for abnormal bleeding and removal of enlarged Uterus. From the evidence it is seen that O.P. No. 2 conducted the Trial Vaginal Hysterectomy and the said operation was done for bleeding problem associated with an enlarged uterus of 8 weeks size as she was continuously bleeding. It is also an admitted fact that Vaginal Hysterectomy was done on 1.6.1991 as per the Note made at page 53 of Exhibit R -I and ''Exploratory Laparotomy'' was done on 2.6.1991 by the Head of the Department of surgery and the said Vaginal Hysterectomy and Exploratory Laparotomy were done as there was generalized oozing from operated vault and abdominal packing was done to arrest the bleeding. O.P. No. 2 in her evidence has stated that before the patient was admitted to the Hospital pre -clinical tests were done on 4.5.1991 and the fitness certificate was given by the Physician on 8.5.1991, whereas the patient was admitted to the Hospital on 16.5.1991 and the operation was conducted on 17.5.1991. O.P. No. 2 herself has admitted that on 16.5.1991 before conducting the operation no clinical tests were conducted so as to ascertain whether the patient was fit for operation. According to her, since the patient was subjected to clinical tests on 4.5.1991 and found fit for operation, no clinical tests were conducted on 17.5.1991. In between 4.5.1991 and 17.5.1991, there was scope for changes in the health of the patient. No doubt, O.P. No. 2 in her evidence has stated that the Anaesthesiologist and Physician confirmed that the patient was fit for operation. In order to show that the patient was subjected to any clinical tests on 4.5.1991, the O.P. Hospital has not produced any documents before the District Forum. If at all any clinical tests were conducted on 4.5.1991, then the Hospital Authorities could have maintained such records and produced the same before the District Forum. There is no material or documents produced before the District Forum to show that the reports of the said tests were available to the Doctor who conducted the operation on 17.5.1991. According to the complainant, the patient was suffering from Jaundice as on the date of the operation. O.P. No. 2 herself in her evidence has stated that by blood test Jaundice can be detected. From the records produced before the District Forum we find that no records regarding the blood test or any other clinical tests are produced. In the absence of such hospital records relating to the clinical tests in the Hospital before the operation, we are of the view that the patient was not subjected to clinical tests on 4.5.1991 or subsequently before the operation. In view of these facts, the evidence of O.P. No. 2 that the patient was subjected to Clinical Test on 4.5.1991 cannot be accepted. The District Forum without verifying whether any clinical tests were conducted or not proceeded to hold that there is no negligence on the part of the O.Ps. in conducting the operation.

GENERALLY whenever an operation is to be conducted, the patient must be subjected to necessary clinical tests in order to find out whether the patient is fit to undergo the operation. In the instant case, we are of the considered view that no such clinical tests were conducted, since the O.Ps. have not produced any documents or case sheet to show that the patient was subjected to any clinical tests. Reports of such tests are also not produced by the O.Ps. before the District Forum. From these facts it is clear that the very operation conducted by the O.Ps. appears to be in a hurry.

ADMITTEDLY , O.P. No. 2 has made a Note, which is marked as Exhibit R -1(a). The Note reads thus : ''Please come and see this patient who has persistent vomitings - Not able to retain anything. She has jaundice -post operative 8 days.''

This Note is dated 23.5.1991. From the records it is seen that the patient died due to Jaundice. When the O.Ps. were aware of the fact that the patient was suffering from Jaundice, after the first operation, they ought not to have resorted to do Vaginal Hysterectomy on 1.6.1991 and Exploratory Laparotomy on 2.6.1991. The said two operations were conducted knowing fully well that the patient was suffering from Jaundice. Accroding to O.P. No. 2, the Doctor is of the view that Trial Vaginal Hysterectomy is the right course to be adopted instead of Abdominal Hysterectomy. Whether Vaginal Hysterectomy or Abdominal Hysterectomy is required, is left to the judgment of the concerned Doctor and not for the patient. But, in the instant case, as stated earlier, the patient was not subjected to any clinical examination. Therefore, the O.Ps. ought not to have resorted to conduct the operation on 17.5.1991. Further, the second and third operations were conducted knowing fully well that the patient was suffering from Jaundice.

The complainant and the patient are not the persons who are well -versed in the field of medicine. If that were to be the case, the Doctor who treats the patient must take all precautionary care that is required to save the patient. In the instant case, no such precautionary step or care was taken by the Doctor in conducting the operation. This negligent way of conducting the operation has ultimately taken away the life of the patient. O.P. No. 2 who has conducted the operation has not filed any version disputing or denying the averments made in the complaint, except filing her affidavit by way of evidence. Therefore, we hold that the O.Ps. are liable to pay damages in favour of the complainant.

THE patient was aged about 46 years when she died. O.P. No. 2 is a Doctor working in O.P. No. 1 Hospital. If that is so, O.P. No. 1 is vicariously liable to pay any damages for the negligent way of performing duties by its employees. The deceased patient was a mother of two female and one male children. Now there is nobody to take care of the children as mother. The complainant is also deprived of services of his wife and her companionship. Therefore, we are of the view that awarding of Rs. 1,00,000 would meet the ends of justice.

IN the result, we pass the following order : (1) The appeal is allowed. (2) The impugned order is set aside. (3) The complaint filed by the complainant before the District Forum is allowed in part. (4) O.P. No. 1 is directed to pay Rs. 1,00,000 as compensation to the complainant within two months from today. (5) In the event if O.P. No. 1 fails to pay the amount as directed above within two months from today, O.P. No. 1 is liable to pay interest at the rate of 12% per annum on the above said sum of Rs. 1,00,000 from the date of the complaint till realisation. (6) O.P. No. 1 is also directed to pay Rs. 10,000 as costs of these proceedings to the complainant. Appeal allowed with costs.