KANAIYAPRASAD G. MISHRA vs TANUMATI G. SHAH

THE complainants have filed this complaint for recovery of total compensation of Rs. 3,20,150/- from the opponents on the ground of deficiency in service.

THE complainants are husband and wife. THE complainant No. 1 who is husband is reported to have died, by application dated March 7, 1994 submitted by the complainant''s Advocate. Complainant No. 2 (complainant, for short) was having severe pain in her abdomen and pelvis and she, therefore, consulted opponent No. 1 who is a senior gynaecologist practising at Ahmedabad. Opponent No. 1 prescribed medicines and complainant was advised to undergo sonography test. THE report of sonography was shown to opponent No. 1 but as she was not satisfied with the report, the complainant was advised to undergo second sonography test. After examining the sonography test and blood reports, the opponent No. 1 advised the complainant to undergo operation for removal of Adnexa in Dr. Jivraj Mehta Hospital to save expenses. THE complainant was given a recommendation letter addressed to R.M.O. of Dr. Jivraj Mehta Hospital by opponent No. 1. It was on the basis of the recommendation letter of the opponent No. 1 that the complainant was admitted to the said hospital. According to the complainant, she was operated for removal of right Adnexa on February 7, 1991. It is alleged that the complainant was to be operated for removal of left Adnexa which was bulky. However, the opponent No. 1 operated on the right side and removed a very small mass present mere. It is further alleged that opponent No. 1 removed the uterus without the complainant''s consent. THE complainant has alleged that it was only due to the negligence on the part of the opponent that only small mass on the right side was removed and the lump mass on the left Adnexa was not removed. After the performance of the operation, the complainant was indoor patient in the hospital from February 9 to February 20, 1991. After she was discharged from the hospital she took medicines as advised by opponent No. 1. However, the pain from which the complainant was suffering continued and as severity of the pain increased, she again consulted opponent No. 1. She was then given treatment for tuberculosis. However, the pain did not subside. It is alleged that it was on account of negligence on the part of the opponent No.1 that the complainant suffered pain. THE complainant again underwent sonography test. THE report of sonography was shown to opponent No. 1. THE opponent No. 1 became angry and threw away the complainant''s case papers and told the complainant to take treatment elsewhere. THEreafter the complainant took treatment from Dr. Samir Shah. Dr. Samir Shah advised the complainant to undergo operation. She was operated by Dr. Samir Shah for removal of mass. She remained in the hospital of Dr. Samir Shah from September 3, to September 11, 1991 and from September 25 to September 30, 1991. The complainant has alleged that right from January 6, 1991 to June 30, 1991 she and her husband had undergone physical as well as mental shock etc. and she had also to incur considerable expenses for taking medical treatment. The complainant has also suffered severe damage because of the removal of uterus by opponent No. I without her consent and knowledge. It is alleged that the complainants, on account of negligence on the part of opponent No. l could not enjoy sex. The complainant is also not in position to bear child. On the above allegations, the complainant has claimed total compensation of Rs. 3,20,150/- which includes expenditure incurred for medical treatment, conveyance etc.

The opponent had resisted the complaint by written statement (Exh. 9). She has denied the allegation that she was negligent in giving treatment to the complainant. The opponent No. 1. has admitted that she was consulted by the complainant for pain in lower abdomen and she had advised sonography test and blood test. Opponent No. 1 has stated that as a rule of caution it is always necessary to have more than one sonography test and, therefore, the complainant was advised another sonography test. The opponent No. 1 has stated that as the complainant''s pain was increasing, she was advised to undergo operation for removal of Adnexa alongwith removal of uterus. The fact of advice for removal of uterus, according to opponent No. 1 has been deliberately kept back by the complainant. It is submitted that the complainant has deliberately failed to produce file containing the relevant papers relating to her case. The complainant was advised to undergo operation at the hospital and the opponent No. 1 stated that she gave a recommendatory letter to the complainant as stated above. This letter addressed to the R.M.O. of the hospital clearly states to admit the complainant to the general ward for total abdominal hysterectomy with removal of both adnexa (extra major). Opponent No. 1 has stated that she proceeded to operate the complainant scientifically from the healthy side to the pathological side and first removed right ovary and right tube and uterus. The allegation that the complainant''s uterus was removed without consent or knowledge is absolutely false. It is stated that uterus was removed with the complainant''s and her husband''s full knowledge and consent in writing. This was also evident from the letter addressed to the R.M.O. of the hospital referred to above and the written consent given in the case papers of the hospital. The opponent No. 1 has stated that while operation was performed, the left fallopian tube and left ovary were not visualised separately and when she was proceeding on the left side, she tried to find the plane of cleavage between the mass, omentum and colon but the plane of cleavage was not possible on the left side. There were all the chances that while trying to separate the adherent colon from the mass, colon might be opened up inadvertently and it was likely that the patient might develop peritonitis, Fascal Fistula and she would have very stormy post operative period and would endanger her life. It was, therefore, in the best interest of the patient that the opponent No. 1 decided to close the abdomen and put the complainant on higher antibiotics. The opponent No. 1 has stated that the above fact was explained to the complainant''s husband and her friends and relatives who were present at that time. It was under these circumstances that the mass on the left was not removed and operation was concluded. Opponent No. 1 has admitted that when the complainant came with the complaint of pain on March 14, 1991, she advised to take treatment for tuberculosis. According to the opponent No. 1 on clinical examination, possibility of complainant suffering from tuberculosis could not be ruled out. It was, therefore, that she suggested for treatment of said disease. Sonography report disclosed that mass was increasing and as the complainant was not in position to afford costly treatment, she was advised to take treatment in one of the three General Hospitals at Ahmedabad. The complainant, however, got only sonography report from all the three hospitals and never took follow-up action or treatment by consulting any of the concerned units of the hospitals. Whenever the complainant came to consult the opponent No. 1, she was repeatedly advised that she should take treatment and follow advice of Professors or Doctors in charge of Gynaec unit of the Civil or L.G. Hospital wherever she got her sonography performed. The opponent No. 1 has submitted that if anybody is responsible for the state of health of the complainant, it is the complainant herself and her husband. The opponent No. 1 has denied that she was in any way negligent in giving treatment to the complainant or performing the operation on her.

THE complainant''s husband has filed an affidavit-in-rejoinder to the written statement filed by the opponent No. 1. It is significant to note that he has not specifically denied the opponent No. l''s allegation, that uterus was removed with his and complainant''s full knowledge and consent in writing. THE recommendatory letter given by the opponent No. 1 and the case papers of the hospital clearly show that consent for removal of uterus was given. However, the affidavit-in-rejoinder is silent on that aspect. It is also significant to note that the statement made by the opponent No. 1 to the effect that her decision to close the abdomen and put the complainant on higher antibiotics was explained to the complainant and their relatives is not also specifically denied in the affidavit-in-rejoinder. There is absolutely no evidence on record to show or suggest that the opponent No. 1 was negligent in giving medical treatment to the complainant. There is also no evidence to prove that the opponent No. 1 was guilty of negligence in performing the operation and that her decision to close the abdomen as stated above was due to any negligence on her part. The complainant and her husband do not have any medical knowledge or experience and the allegations made in the complaint are mere assertions without any basis. There is no reason to disbelieve the statements made by the opponent in her written statement which is supported by affidavit. Statements made by her in the written statement clearly go to show that she was very careful in giving treatment to complainant and she had used her skill and knowledge in performing the operation. It was in the best interest of the complainant that she decided to close the abdomen without removal of the lump or mass on left Adnexa. In our opinion, as already observed above, the opponent No. 1 is not proved to be guilty of any negligence in giving medical treatment to the complainant In the circumstances, the complaint deserves to be dismissed.

BEFORE parting with this case, we regret to observe that the opponent No. 2 has not cared to give any reply to the complaint nor any one on his behalf has appeared before this Commission and bring on record true facts and assist the Commission in reaching a right conclusion. In the result, this complaint fails and is dismissed. In view of the fact that the complainant has lost her husband, the opponent No. l does not press for cost. We therefore, do not pass any order as regards to costs. Complaint dismissed.