TARACHAND JAIN vs Ganga Ram Hospital

THE Complainant''s claim is on the ground of medical negligence on the part of the opposite parties. THE opposite party No. 1 is Sir Ganga Ram Hospital and the opposite party No. 2 is Dr. B.K. Vohra, Senior Consultant in Urology, Sir Ganga Ram Hospital. THE facts leading to the controversy may be briefly stated as under :

THE complainant is a resident of Muzaffarnagar who visited respondent No. 1 with the complaint of having urinary trouble. THE opposite party No. 2 with his team examined the complainant and advised him the prostate operation. THE complainant was admitted in the hospital on 10.9.1990 and was operated by the opposite party No. 2 on 11.9.1990. He was discharged from the hospital on 15.9.1990. At the time of discharge from the hospital, the complainant was directed to take some medicines and was told that he would be perfectly normal within one or two months. THE complainant returned to Muzaffarnagar and followed all the directions and treatment prescribed by the opposite parties. But instead of having relief, he started feeling acute pain in thigh muscles and backbone. THE tendency of continuous and regular flow of urine which had started immediately after the operation continued. THE complainant started having fever and increase in blood urea. His condition became very serious. He was admitted in the hospital of opposite party No. 1 on 17.11.1990 in the Nephrology Department. THE complainant was discharged on 13.12.1990. Despite the medicine prescribed by the opposite parties, the problem of continuous urine flow could not be cured. The opposite parties advised the injection ''Taflon'' to the complainant which was not available in India but was available in America. The complainant wrote a letter to his relative who lived in America for sending the injection but the complainant was advised not to take the ''Taflon'' injection because it had a bad side effect and also was not of much use in such cases. The complainant visited the opposite party hospital a number of times. But his problem of continuous urine flow continued. It was due to the negligent act on the part of the opposite party No. 2. The complainant was advised to use clamp all the time so that urine may not flow. But it is very painful to use the clamp. Even with the use of the clamp the complainant has to use sanitary pads all the time due to this trouble. Under these premises, the complainant claims compensation to the tune of Rs. 40 lakhs on account of deficiency in service on the part of the respondents.

Needless to say that the complaint is contested on behalf of the opposite parties. In the written statement filed by the opposite parties, it is stated that the complaint has been filed with mala fide intention in order to extract money from the opposite parties. The complainant has no case and the same has been filed with ulterior motives. The complainant contacted the opposite party No. 1, hospital, in the month of July, 1990. He was examined by Dr. Ajit Saxena, Junior Consultant in the Urology Department in the private Out-patients'' Department. He was advised to undergo certain investigations including examination of kidneys, prostate and bladder and full volume and residual urine flow, etc. Thereafter he was admitted in the hospital on 10.9.1990 when it was diagnosed as benign hyper trophy of prostate. He was operated on 11.9.1990. He was finally discharged on 15.9.1990 as cured. At the time of discharge, the complainant was specifically advised, (1) not to strain while passing urine; (2) to drink plenty of water; (3) take tablet Norflox 400 mg BD for 5 days, and (4) take tablet Combiflam 2 tablets 3 times a day (after meals) for 4 days. He was advised to contact after a week in the private Urology OPD on 21.9.1990 at 4. p.m. The complainant, however, did not turn up and instead preferred to undergo further investigation, treatment, etc. at Muzaffamagar, U.P. During the treatment at Muzaffamagar under the advice of the other doctors, the complainant had been administered heavy dose of anti-biotics which damaged his kidneys. He contacted opposite party No. 1 on 17.11.1990 with acute renal failure. The complainant deliberately did not adhere to the medical advice rendered to him and preferred to undergo further investigation, treatment, etc. at Muzaffarnagar. The complainant had written a letter to the opposite party No. 1 addressed to Medical Superintendent on 10.2.1992 wherein he had stated that at the time of his discharge, the duration of illness was recorded by the opposite party No. 1 as four years instead of 4 months and as such, he wanted the same to be amended accordingly. The respondent No. 1 did not amend the medical record as requested by the complainant but issued a certificate dated 25.2.1992 acknowledging the fact that the complainant had requested to amend the period of sickness as 4 months instead of 4 years. At the time of requesting the opposite party No. 1 to amend the medical record and issue a fresh discharge summary as mentioned in the letter dated 10.2.1992, the complainant had nowhere mentioned about the alleged complications arising out of the operation that he had undergone in the hands of opposite party No. 2 which clearly showed the mala fides of the complainant. It was denied that there was a regular flow of urine after the operation. It was further denied that the alleged problem of continuous urine flow was on account of heavy administration of anti-biotics. There was no negligence on the part of the opposite parties in treating the complainant.

IN the rejoinder filed by the complainant, he controverted the pleas and allegations of the opposite parties and reiterated his allegations. It is stated that the complainant contacted Dr. Ajit Saxena on 21.9.1990 and was advised to continue the same treatment as it was advised at the time of discharge for 7 more days. The complainant narrated and disclosed the fact of frequent, continuous and dribbling of urine. The complainant was treated at Muzaffarnagar for the infection which was caused due to lack of services and unhygenic conditions in the hospital. The complainant started having high fever and burning in urinari tract. So, he contacted the local doctors who were well qualified doctors and had undergone the investigations. The investigations revealed that the complainant was having pus-cells, red blood cells in the urine. The doctors treated the complainant only for the infection which was caused by the negligent act and lack of care by the opposite parties. The treatment by the doctors at Muzaffarnagar was only for the pain in pelvic region and they never suggested any anti-biotics. It was further alleged that the opposite party No. 2 at the time of operation cut the sphincter muscle which controls the flow of urine. It was a negligent act on the part of the opposite party No. 2 for which opposite parties are jointly and severally liable to pay the compensation claimed by the complainant. At the time of discharge the complainant was not perfectly normal. He was having the incontinent i.e. regular urine flow problem and also weakness. The opposite party No. 1 advised that the complainant would be perfectly normal within a few months. The complainant is suffering from the same problem uptil now. The injection ''Teflon'' was advised by Dr. Saxena. The complainant was not aware of the spelling of ''Teflon'', so, he requested Dr. Saxena to write the name of the injection on the paper which was kept in the file of the complainant. The problem of incontinent urine flow was there even at the time of discharge i.e. 15.9.1990 and he also caught infection in the urinary tract after the operation. This was due to the negligence of opposite party No. 2 because the sphinctor muscle which regulates the urine flow was cut by him. The claim was correct and genuine. We have heard the learned Counsel for the parties and gone through the written submissions submitted by them. It was contended on behalf of the complainant that the case of the complainant was that in his TVR (Prostate) by the opposite parties, his sphincter muscle was cut negligently by them. The complainant followed all the directions and treatments prescribed by the opposite parties but he developed acute pain in the thigh muscle, back bone. The urine continuously and regularly dribbled and flew immediately after the operation. Owing to the negligence of the respondents and unhygenic conditions in the hospital, he developed severe infections soon after the operation. He contacted the opposite party No. 1 and its doctors and visited the hospital as directed but got no relief in the dribbling of urine. The opposite parties advised ''Teflon'' injection and later on prescribed the use of clamp, the only way to check the continuous flow of the urine due to the cut of the sphincter muscle by the opposite parties. In support of his arguments he relied upon the prescription dated 25.10.1990 of the Urology Consultant, Dr. Ajit Saxena prescribing ''Teflon''. He also referred to prescriptions dated 11.12.1990 of the opposite party No. 1 (clamp to be used). In this connection he also relied upon the checkup and examination report of Dr. (Brig). B. Rautray, Consultant, Urologist Surgeon. It was argued that the opposite parties had failed to substantiate the pleas taken in the written versions. Even the doctors who signed the relevant paper were not produced. The documents filed by the complainant alongwith replica, the prescription of the opposite party doctor dated 25th October, 1999 fully established the truth of the complaint. Dr. Ajit Saxena admittedly had suggested scan for residual urine and uroflow besides prescribing Teflon'' injection within ten days after the discharge of the complainant. He also relied upon the letter of 20th June, 1991 written by Dr. Ajit Saxena to the complainant which established the prescription of the ''Teflon'' injection and cut on the external sphincter muscle. The complainant was prescribed Cunningham Penile Clamp within about one and a half months of the discharge from the TVR (Prostate) which completely established that the sphincter muscle was damaged and cut during the operation. The complainant was thrown out of the hospital consoling him that the continuous urine flow and dribbling would be allright within two or three months. Dr. O.P. Sharma in his statement admitted that the pouch was visible when the complainant had come to see him. The opposite party relied upon a document alleged to be a discharge slip wherein on the reverse side at the bottom line it was written, bladder catheter removed prior to discharge - voiding well. The document was clearly a forgery as neither the contents were signed by any doctor nor any date was mentioned. The document was not admitted by the complainant and it should have been proved by the opposite parties by producing relevant evidence. The case of the complainant fully established by producing cogent and reliable evidence. The opposite parties alleged that Sphincter could have been damaged because of heavy doses of anti-biotics which he used on the prescription of some private doctor of Muzaffarnagar. No amount of anti-biotics use could damage the sphincter. Rather the opposite party prescribed heavy doses of anti-biotics at the time of his discharge. In support of his arguments he relied upon extracts - the Text Book of Bailey and Love''s Short Practice of Surgery, 16th Edition, pages 1196, 1197. He further argued that the discharge summary slip of the opposite party hospital clearly established "patient remained incontinent at present and was on condom drainage". It abundantly proved and established the negligence of the opposite parties.

ON the other hand, the Counsel for the respondent No. 1 submitted that there was no specific allegation of alleged negligence in the complaint and the complainant had not been able to discharge the onus. The complainant was operated by the opposite party No. 2 on 11.9.1990 and the operation was a complete success. After the operation, the complainant had recovered and his catheter was removed on 14.9.1990. The complainant was discharged on 15.9.1990 and at the time of discharge the complainant was given discharge slip which read as under : "Post-op : uneventful - Bladder catheter removed prior to discharge - voiding well." The complainant was advised "not to strain while passing urine". The perusal of the discharge slip would clearly show that the complainant had uneventful recovery and was voiding well (passing urine well). The very fact that the advice given to the complainant in the discharge slip to the effect that he was not to strain while passing urine would show that the complainant was not leaking urine at that point of time. The complainant''s first post-operative visit to Urology OPD was on 24.9.1990 where it was recorded that Nocturia x 3 which meant passing urine 3 times a night. That would also clearly establish that even as on 24.9.1990 when the complainant had visited the Urology OPD of opposite party No. 1 he was passing urine 3 times a night and if there was a leakage there was no question of the complainant passing urine 3 times a night. ON the second visit which was on 25th October, 1990, it was again recorded "Urine - good flow". ON both the occasions i.e. on 24th September, 1990 and 25th October, 1990 the complainant was examined by Dr. Ajit Saxena in Urology OPD and the aforesaid statements were recorded in the hand of Dr. Ajit Saxena. The second admission of the complainant in the hospital of opposite party No. 1 was on 17.11.1990 with ARF (ATM) i.e. Acute Renal Failure which had nothing to do with the operation which was conducted on 11.9.1990. It seemed that while the complainant was in Muzaffarnagar, he had consulted some local doctors and was administered some heavy dose of anti-biotics which resulted in the damage of kidneys. The only answer to the fact that on 17.11.1990 the complainant was found to be dribbling was that the complainant while in Muzaffarnagar might have tried some surgical intervention at some other place which might have resulted in dribbling. No documentary evidence had been placed on the record to show that the complainant had made any complaint of dribbling after the operation or even on his visits on 24th September, 1990 and 25th October, 1990. The complainant had approached the Medical Superintendent of opposite party Hospital and had pointed out to him that the duration of his illness mentioned in the discharge certificate be changed from 4 years to 4 months as he required the discharge certificate for his insurance claim and gave a letter dated 10th February, 1992 to that effect. In that letter he had not mentioned whatsoever regarding his alleged leaking of urine on account of the operation. It was also argued that there was no mention of cutting of sphincter muscle in the complaint. The complainant for the first time in his rejoinder had stated that his sphincter muscle was cut during the operation. The complainant failed to establish on record any negligence attributable to the respondents in conducting the operation or in the post-operation care and treatment. No medical expert evidence had been placed on record in support of the imaginary theory put up by the complainant in the pleading or in the arguments. It was argued on behalf of the opposite party No. 2 that the contention of the complainant that due to the cut in the sphincter muscle, the complainant was incontinent right from the date the catheter was removed on 14th September, 1990 and that he continued to be leaking even at the time of his discharge from the hospital on 15.9.1990. It was clearly written on the discharge slip dated the 15th September, 1990 "Post-op : uneventful. Bladder catheter removed prior to discharge - voiding well". The remarks clearly indicated that he was passing urine satisfactorily in all respects. The complainant has made a reckless allegation that the record of the hospital pertaining to the discharge slip of the complainant was forged. The complainant himself filed copy of the discharge slip where the same observations were recorded. His post-op visit to the Urology OPD was on 24.9.1990 when it was recorded Nocturia x 3 which meant passing urine 3 times a night which implied that no leakage at all. The second post-op visit to the Urology OPD was on 25.10.1990 when it was documented urine : good flow. On both the occasions he was seen by Dr. Ajit Saxena, Urology OPD who had recorded in his own handwriting the statements. Dr. Ajit Saxena had been the consultant of the complainant from the time he was seen by him in the Urology OPD in July, 1990 and had continued to be the consultant of the complainant even after Dr. Ajit Saxena left the opposite party No. 1 (Sir Ganga Ram Hospital) on 31.3.1991. The story of the complainant of leaking of urine from day one is belied from the documents on record of the Commission. The record clearly proved that the patient had no problem of leakage of urine whatsoever resulting from operation performed by opposite party No. 2 on 11.9.1990. It would be creating a medical history if anybody who had been operated by that procedure would remain absolutely dry for 6 weeks and would then start leaking urine as a result of cutting of sphincter muscle during operation as alleged by the complainant. If incontinence was due to cutting of his sphincter muscle during the operation, then the incontinence v leakage of urine'' had to start from the moment catheter was removed which in his case was removed on 14.9.1990. After the operation the complainant consulted opposite party No. 2, Dr. B.K. Vohra on 20th July, 1992. The O.P.D. card showed that he was advised ultra-sound and uro-flow the reports of which had been filed by the complainant. Uro-flow was reported as "normal peak and normal mean flow-large voided volume". It meant that he could retain 517 ml. of urine which showed that he was not leaking at all. The Counsel for the complainant vehemently argued that on the prescription "Teflon'' injection had been prescribed by Dr. Ajit Saxena. According to the Counsel for the complainant it could easily be concluded that sphincter muscle was cut otherwise Teflon could not be suggested. The Teflon injection was never prescribed by opposite party No. 1 or 2. The Teflon injection had been written over a prescription and on the top of the letterhead of Ganga Ram Hospital. It was written on the prescription which was given to the complainant. The corresponding record of the hospital was filed before this Commission pertaining to the same prescription dated 25th October, 1990 which showed that Dr. Ajit Saxena had not prescribed the Teflon injection. It was obvious that it had been clandestinely written on the prescription which was with the complainant. The letter dated 20th June, 1991 was written by Dr. Saxena 3 months after he had left the services of Ganga Ram Hospital on 31st March, 1991. It was strange that if a person was suffering from continuous leaking of urine, he did not see any Urologist. It was apparent that the first time the complainant consulted any other Urologist was in September, 1993 which was 7 months after filing the present complaint this Commission. The use of clamp or pouch was never suggested by the opposite party No. 2 when the surgery was undertaken and the complainant was discharged. However, when the complainant was re-admitted for renal failure in medical unit of Dr. Ved Prakash and Dr. Lalit Duggal, he was found to be dribbling. He was extremely sick and his life was in danger and in such circumstances incontinence could start in any patient whether he had TURP or not. The complainant had not filed a single document or evidence which could suggest that there was incontinence between 15.9.1990 and 17.11.1990. The complainant might have had surgical intervention somewhere outside the hospital and might have suffered. Otherwise, the surgery in the hospital performed by opposite party 2 was excellent and was uneventful. Had the complainant been really suffering, he might have knocked the doors of the opposite party Nos. 1 and 2 or might have gone to some premier institution like AIIMS, Apollo or some other institution for treatment. The complainant had never put on record even a letter written by him to the opposite parties complaining about the urinary leakage till July, 1992 which was 22 months after his operation, September, 1990. We have considered the relevant contentions of the parties. In our opinion the only question that we are called upon to decide is as to whether the sphincter muscle of the complainant was cut during the operation performed by the opposite party No. 2 and there was incontinence between 15.9.1990 and 17.11.1990. According to opposite party No. 2, if incontinence was due to cutting of sphincter muscle during the operation, then incontinence (leaking of urine) had to start from the moment the catheter was removed which in this case was removed on 14.9.1990. It would be creating a medical history, if anybody who had been operated by that procedure would remain absolutely dry for 6 weeks and would then start leaking urine as a result of cutting of sphincter muscle during operation. The complainant relied upon the prescription dated 25th October, 1990 wherein at the top the word ''Teflon" is written. According to the complainant "Teflon" was prescribed by Dr. Ajit Saxena when he visited him and made a complaint that he was suffering from incontinence. According to the complainant Dr. Saxena suggested him Teflon injection and as the complainant was not aware of the spelling "Teflon'', so he asked Dr. Saxena to write the name of the injection and that is how, Dr. Saxena wrote the word "Teflon" at the top. We are of the opinion that the explanation given by the complainant is not plausible. Dr. Saxena had written the entire prescription on the letter-head of the Ganga Ram Hospital and signed there under. If Dr. Saxena had to prescribe the injection Teflon, he should have written in the prescription itself and would have signed after prescribing the injection. More over, in the record produced by the hospital corresponding to the same prescription, the word Teflon was not there. It is unbelievable that Dr. Saxena would write only the word "Teflon'' without indicating the quantity and the manner in which the injection was to be given as indicated by Dr. Saxena in his letter dated 21.6.1992 reproduced below. It appears that the word ''teflon'' had been written subsequently at the top. The next document that was relied upon by the complainant was the letter dated 21st June, 1992, written by Dr. Saxena to the complainant wherein he had suggested the injection "Teflon''. The letter reads as under : "Dear Jain Sahib, This has reference to our recent telephonic conversation. I am sorry to note that you have had little relief of your incontinence in spite of the various conservative measures. The Teflon injection treatment that I have suggested involves injecting the paste submucosally in the region of the external sphincter. Upto ten ccs. May be required to get the desired effect. However, the exact amount varies, depending on the urethral lumen, from 3 ccs to 10 ccs. The procedure requires a special syringe and needle. I may add that I have used this technique for similar cases, both in India and in the United Kingdom with a fair amount of success. Please write to me at my changed address should you desire any further clarification or information. With best wishes, Your sincerely, Ajit Saxena M.S., F.R.C.S. (Edin.). P.S. I will let you know my telephone number as soon as I get one. Meanwhile, you may contact me on Tues/Thurs/Sat KOLMET Hospital, Pusa Road, between 4 p.m. and 6 p.m. Tel Nos. 5752055,5752056, 5752057." The letter also does not indicate that the incontinence of the complainant was due to cut of sphincter muscle during the operation performed by opposite party No. 2. Even otherwise, the complainant cannot build up his case by merely producing the letter on the record. According to the complainant, during his visit to the OPD Department, he had been informing Dr. Saxena about the incontinence from the date of discharge. The complainant did not take any step to produce Dr. Saxena as his witness in support of his case who had left the hospital in March, 1991. Dr. Saxena was an important link to prove the allegations made by the complainant. The other documents on which reliance had been placed by the complainant is the prescription of Dr. (Brig.) B. Rautray dated 14.6.1990 wherein it is written as under : "Dated 14.6.1990 TURP in Sept. 90. Urinary incontinence since then, due to sphincter damage. - Uses a penile clamp otherwise dribbles - Releases 2 -3 hly - Does not dribble during sleep unless strains or changes side. - PR - NIL residual______ - Post TURP incontinence - Advised to continue use of penile clamp - Recommended surgery for incontinence artificial______ Sd/xxxxxx (B. Rautray)"

IN the prescription the words "due to sphincter damage'' were scored out by the Doctor. The prescription does not show that the sphincter muscle of the complainant was cut during the operation performed by respondent No. 2. It was for the complainant to have produced Dr. Rautray in support of his case. We find that the mere prescription of Dr. Rautray cannot be relied upon by the complainant as a piece of evidence.

IT is strange that the complainant did not make any complaint to the opposite party that he was suffering from incontinence from the time of the operation. No doubt, the complainant was found to be suffering from incontinence on 17.11.1990. The contention of the complainant that the record of the hospital in respect of the discharge summary slip where it was written voiding well was forged. In our opinion, the allegations are unfounded. The complainant also filed the discharge summary slip wherein the same observations were recorded. It is pertinent to note that the complainant in his complaint did not mention at all that his sphincter muscle was cut during the operation performed by respondent No. 2. However, for the first time in the rejoinder filed by the complainant, he had stated that incontinence with which the complainant was suffering was for the reasons that his sphincter muscle was cut during the TUR operation by the respondents.

No cogent, convincing and reliable evidence has been produced by the complainant in support of the allegations made in the complaint. The complainant for the reasons best known to him did not produce medical expert in support of his case.

THE complainant has failed to establish on the record that sphincter muscle was cut during the operation performed by the opposite party No. 2 and the complainant had been suffering from incontinency from 15th September, 1990 to 17th November, 1990. THE complainant had not been able to substantiate the charges of negligence and deficiency in service on the part of the opposite parties. THE complaint filed by the complainant is devoid of merit and deserves dismissal. We accordingly dismiss the complaint. However, we make no order as to costs. Complaint dismissed. ______________