VARADHA S. NAIR vs REMANI N. RAJAN

-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

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: 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.

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.

ON 7.7.1991 she met R.1 and showed all the medical reports to her. R-1 was aware of the status of her health as the complainant told her about her state of health when she met R-1 on an earlier occasion, i.e., in the year 1989. ON a perusal of the case records, R-1 advised for Hysterectomy. She had physically examined the complainant and prescribed Chymoral Forte for ten days which is intended for shrinking of cyst in the ovary. When R-1 had advised for Hysterectomy, the complainant had brought to her notice the opinions given by Dr. Balakrishnan, Dr. Vinayachandran Nair and Dr. Krishnan Nair, according to whom the complainant was normal and no need to undergo any surgery and only followup was necessary, R-1 had told her that none of the above Doctors was a Gynaecologist and hence she would have to undergo the operation and further suggested that it othewise it would become cancerous. As per her advice she had taken scan at Dr. Nambiar''s Clinic on 8.7.1991 and went to R-1 on 15.7.1991. On examining the report, R-1 stated that the report was the same as the earlier report of February, 1991 and reiterated that the operation was necessary.

THE complainant was also advised to get done pre-operation checkup from Dr. Sahanjanadan, whose report was shown to Dr. Rajan. Dr. Sahajanandan, after examining the complainant and after going through the blood test report, prescribed tablet Hetrazan 100 mg. thrice daily for three weeks as the complainant was having eosinophilia in the blood test. He has further advised her to undergo the treatment unless the surgery advised was so emergent, and that surgery before the medication could cause post-operative complications like cough, breathlessness, wheezing, etc. When this advice of Dr. Sahajanandan was brought to R-1''s notice, R-1 told the complainant that she could undergo the operation and that the post-operative complications stated by Dr. Sahajanandan were not very serious. Hence, the complainant did not take the full course of Hetrazan. THEreafter, she was advised to get herself admitted on 17.7.1991 for Hysterectomy which she did and the surgery was fixed for 19.7.1991. It is her further say that her sister and brother-in-law (both are Doctors) had told her that Hysterectomy was not advisable as her complaint was confined to cystic ovary, and even if Hysterectomy was to be done, it could be done at Calicut Medical College. And, they further told the complainant that she was ill-advised by R-1 in this regard. When the complainant had brought this fact to the notice of R-1, R-1 told the complainant that Hysterectomy was a simple operation which would take only one hour and that there were all the facilities in the R-3 Hospital and the complainant need not worry. R-3 told her to make available one pint of blood for the operation. On 19.7.1991, after obtaining consent from the complainant for hysterectomy, she was administered anaesthesia at 7.00 a.m. and Dr. Rajan started the surgery at 7.30 a.m. Thereafter, the complainant could not remember anything and she regained consciousness only on 20th July, 1991 when she found herself in the post-operative intensive care unit, where she was lying head-downwards, with high temperature, breathlessness, wheezing, cough, body pain, especially in the stomach. She had intolerable pain and was given Deriphillin injection, and antibiotics were restarted. Deriphillin injection was being continued on the following day with zeet expectorant. Bleeding was there through vagina. There was constipation.

ON the third day she was shifted to room. Because of constipation, motion was not passing through colostomy. Sister kept ''suppositor'' at the colostomy but motion passed through anus. When R-2 came to know about this he fired the sister who put the suppositor at the wrong place. Her abdomen bulged which also caused intolerable pain. Thinking that all this was due to urinary infection, R-1 prescribed ''Cyfran injection''. There was no relief and later it was found that it was due to formation of abscess in the stomach. Pain killer injections were prescribed. From the 9th day onwards motion was passing through vagina though it was passing through the colostomy earlier. She was advised to take ''Kanji'' and ''Barley''. The motion output through the colostomy was considerably reduced and discharge through vagina had increased. At this juncture R-1 had plugged vagina with cotton pads in order to prevent vaginal discharge and motion. This created excruciating pain due to skin excoriation. Even after the pads were removed, there was no relief from the discharge of motion through the vagina. She was given local anaesthesia and operated upon at the colostomy. In spite of that the flow of discharge through the vagina continued. Ultra scan was taken at Dr. Nambiar''s Clinic and treatment continued, and her condition deteriorated day-by-day. In the meantime, the complainant''s brother-in-law consulted some experts in Calicut and she got her discharged from the R-3 Hospital for being taken to Calicut for further medical aid. The complainant got admitted in Baby Memorial Hospital, Calicut. There some tests were carried as suggested by Dr. Karthikeyan. ON 7.8.1991 some corrective operation was conducted by Dr. Karthikeyan and Dr. Mohan whereafter the complainant felt some relief from the pain, but passing of motion through vagina was continuing. She had constipation also. After a week another operation was conducted for reducing the vaginal discharge, by the same Doctors. Since the food was not digested, she had to take partially digested food which was not available in India. After two weeks of the second operation, ilistomy was closed by another operation. Even today, vaginal discharge continues accompanied by discharge through colostomy. ON 14.11.1991 she was discharged from the Baby Memorial Hospital. Since daily dressing of the wounds was necessary she got admitted as an in-patient in the J.N.N. Hospital for nearly one and half months.

SHE had further stated that after the operation in R-3''s hospital, she was not able to move freely even in the house, as, while walking she was having vaginal discharge. SHE could not use colostomy bag because of the great excoriation of the skin. SHE is permanently using a kidney tray to collect the discharge from the colostomy. SHE has to keep the kidney tray intact by using hands and she could not even peacefully sleep because of this problem. Discharge through vagina wets the clothes. Every now and then she has to go to toilet for cleaning the area. SHE can lie down only on her left side. Her two finger nails are infected due to constant application of the same for the purpose of taking out faecal matter through the vagina. Motion passes through the anus once in two weeks and because of the constipation anemia is to be applied. Though the doctors say that she could take all types of food, but she could not digest them, and whatever food she takes, it discharges within 15 minutes through the colostomy. Because of continuous hospitalisation which led to non-caring of teeth, except six all the teeth are removed and artificial teeth are used by her. SHE could not attend to her domestic activities. SHE could take bath only once in two weeks, that too with the help of somebody. While walking inside the house, she has to use kidney tray at the colostomy. The ''FACT'', a company in which her husband is working, had reimbursed a small portion of the medical expenses incurred by them. SHE had to take a loan for meeting the expenses incurred in this behalf. In her cross-examination she had stated that she knew R-1 when she was working in Dr. Kunjaloo''s Hospital and her family members were R-1''s patients. R-1 was a doctor who had good experience and practice and that she would not unnecessarily hospitalize and charge the patients. Before the operation she had consulted R-1 three times due to back pain. It was also stated by her that she had shown the scan reports which were taken in February, 1991 on the advice of Dr. Balakrishnan, to R-1 in July, 1991 when she went to see R-1. The complainant has further stated that as the scan reports were similar, she felt no need to show the second scan report to the doctors who had stated that there was no need for the operation on the basis of the first scan report. The second scan report was not shown to Dr. Vinayachandran, Dr. Balakrishnan and Dr. Karthikeyan because her faith in R-1 prevented her from taking a second opinion. Her sister told R-1 that the operation was unnecessary. Operation was started after making the complainant unconscious. She did not ask the R-1 to take a second opinion before the operation.

In the complaint her condition as on today is stated as under: (i) she is under constant care of somebody; (ii) motion passes through anus, vagina and colostomy; (iii) very frequent abdominal pain; (iv) persistence of extensive excoreation which causes severe burning pain of the abdomen and vagina; (v) the skin in her abdomen is completely decayed and she is unable to put on her colostomy bag; (vi) very often she trembles with shooting pain; (vii) she needs two pain killer injections daily; (viii) a number of cotton rolls are required every month for dressing; (ix) she cannot put the colostomy bag, because of the extensive excoreations; (x) she has to hold kidney tray to get rid of the motion; (xi) she has to go to the toilet very often to clean the motion coming through vagina; (xii) when the vaginal discharge increases, the skin is completely torn off, resulting into severe unbearable pain, she becomes restless and trembles with severe pain; (xiii) she suffers pain every day since the day of the operation performed by the opposite parties, i.e., 19.7.1991.

SHE has, therefore, filed a complaint before the Kerala State Consumer Disputes Redressal Commission claiming damages to the tune of Rs. 9,50,000/-. In support of her claim she has produced the medical bills amounting to Rs. 3,25,000/- and a sum of Rs. 6,25,000/- is claimed towards damages and future expenses for treatment. It is pointed out that the State Commission, Kerala proceeded with the matter till 1996. Evidence was recorded and the matter was fully argued. Thereafter, it was reserved for the judgment. But in view of subsequent developments, the State Commission felt embarrassment in disposing of the matter. It was finally referred to this Commission in 1997. This Commission passed an order on 8.4.1997 and transferred the matter to it for decision. (a) Evidence of R-1 and other witnesses :

AGAINST the aforesaid evidence and contentions, Dr. (Mrs.) Remani N. Rajan (since deceased) (R-1) has stated in her deposition that she is working in Vijaya Hospital since 1998 which is a well equipped hospital with all facilities for major operations and endoscopic surgery. She was having eight Junior Doctors, one Junior Gynaecologist and one Senior Endoscopic Surgeon. Dr. P.S. Binu (R-2) was a Surgeon on Call with special training in paediatric surgery. They were not having blood bank. However, one bottle of blood was kept ready for major surgeries. Complainant was examined by her in July 1991 and she was having cyst in the ovaries. This was diagnosed by clinical examination. Scan report was taken. As per the scan report there was an enlargement of ovary. She, therefore, suggested the complainant for removal of uterus, tubes and ovaries. She did not use any influence to persuade the complainant or her husband for having surgery. Before surgery, she was examined by a general physician, Dr. Sahajanandan and was reported to be fit for major surgery. She had denied that she had cut ileum (small intestine) of P.W. 1 (complainant). She had agreed that "when she was removing the uterus and a part of right ovary there was a damage just behind vagina on the colon. Then Dr. Binu (R-2) came and took over the operation and she started assisting him. It is her say that the complainant came with gynaecological problem but during the surgery she detected a surgical problem which needed the assistance of a surgeon. It is her further say that "the right ovary was ruptured during dissection and cyst wall had to be removed piece by piece and the intestines were very fragile. The fragility was due to the previous diseases, surgery and chemotherapy. She had denied the suggestion that colon was not purposely cut to make use of the EEA stapling gun. She has also stated that during the course of operation R-2 removed appendix for the best interest of the patient. She had agreed that at about 7th or 8th day complainant started letting motion through the vagina. She has stated that: "There is no negligence on my part. I never cut the small intestines. A damage occurred on the colon during my surgery that was repaired by R-2. There has been no problem as a result of damage of colon (without taking consent). The appendix was removed in good faith. The colostomy was also done in good faith. The result of referral report was given to P.W. 3 and P.W. 4. I did not give the photostat copies of any of the documents produced by P.W. 1 in the Court". She saw the scan report dated 16.2.1991 and has admitted that as per the said report left ovary was normal without any space occupying and the right ovary was minimally cystic. She has admitted in the cross-examination that: "When I found that there was damage on the intestinal wall, I requested for the assistance of the second respondent. This happened during my dissection. It was only a laceration of less than one centimetre. This damage might have occurred during my attempt to remove the ovarian cyst". She has stated that the said damage was repaired by R-2 by using Anastamotic gun. She has also admitted that the petitioner did not have any cancer in rectum at the time of operation which was conducted at the R-3 Hospital. She was required to admit that in Ex. P-4, she has stated that "right ovary is cystic and I have advised for Hysterectomy". On cut of Ilium : 1. In her examination-in-chief R-1, (Dr. Rajan) stated that she did not cut the small intestine (ileum) of P.W. 1. She further stated that she did not call R-2 to have the cut on the ileum repaired and that the ileum was never cut. However, in her cross-examination she has stated that: "When I found that there was a damage in the intestine wall, I requested for the assistance of R-2. This happens during my dissection. It was only a laceration of less than 1 cm. The damage might have occurred during my attempt to remove the ovarian cyst."

SHE has also deposed that a "damage occurred on the colon during my surgery. That was repaired by R.2". The Appendix was removed in good faith. The colostomy was also done in good faith.

EX. 30 (page 86) is a referral letter written by the respondent No. 3 Hospital to Dr. Nambiar''s Ultrasound Scan Centre. In the middle of it, it says that the opinion to operate the complainant was not arrived at just by examination but also on the basis of the scan report. (b) Evidence of Dr. Karthikeyan, P.W. 2 Dr. Karthikeyan, a qualified and experienced General Surgeon who was examined on behalf of the complainant stated that he knew the petitioner since 1982 and in the year when he did the operation on this patient, he thought that an appendicectomy was not indicated. After this operation she was doing well. No evidence of recurrence of the disease cancer colon. There was a chance of developing cancer in some other part of the colon. If it is not completely removed or the treatment is delayed, it can spread to other organs. As far as the complainant was concerned whenever he saw her there was no evidence of spread of disease or any tumour in any organ. He further stated that his knowledge and experience was to the effect that colon would not become fragile with chemotherapy particularly eight years after chemotherapy. He further stated that chemotherapy will not change the tone and texture in the internal organs after a long interval of eight years.

It is his further say that if he had anticipated adhesions or any complications during surgery he would arrange four (4) more units of blood for transfusion. In the case of colostomy, if the patient is constipated the suppository has to be placed in the proximal opening.

HE has also stated that in case of acute emergency, the operative surgeon has to invite another doctor who should be summarized about the patient because he may not get time to go through the records. If a colleague points out that some organ is going to be wrongly cut, he would proceed to confirm whether that was correct or not before dividing it. During operation if intestine seems to be friable, they (the doctors) would proceed carefully to avoid injury to the patient. If it is a planned operation, he would postpone the surgery till the treatment is completed. And, in case the surgery is conducted without treatment and if it is impossible to proceed with the surgery, the surgeon has to either abandon the operation or proceed carefully provided he is confident to tackle the situation. On 3.8.1991 when the patient was brought to Calicut she was having fever, colostomy was not working, profuse discharge from the vagina and having severe pain around vagina and reddish discolouration of the vagina and perineum.

THE appendix has no connection with ovary, uterus or tubes unless it is adherent by disease. According to him it is a must to get consent from the patient or the close relatives after explaining the procedure and carrying on of the operation. (c) Evidence of Dr. P.B. Prabhakaran, P.W. 5 Dr. Prabhakaran also stated that before carrying out surgery on the complainant, the operating Doctor ought to have discussed the details of the first operation with the Surgeon who had first operated on her. R-1 should have kept in mind possible complications. Further, only minimum possible surgical interventions should have been carried and there was no chance of developing carcinoma in other organs after the patient had rectal cancer. (d) Evidence of Dr. P.S. Binu, R.W. 2 Dr. P.S. Binu has stated that he was a Consultant General Surgeon and also specialised in Paediatric Surgery, and he was working as Consultant in the R-3 Hospital.

HE has, in cross-examination stated that on the day before the operation R-1 told him over phone that she was doing a major operation on the next day and asked if I was available, and she did not tell him the medical details. On the day of the operation, in the morning, he had received a call from Dr. Thomas Sebastian, Anaesthetist. Immediately thereafter he had rushed to the hospital as Dr. Sebastian did not explain in detail the medical complaint of the complainant. HEnce, he was not aware of the specific complication for which he was called upon.

HE had also deposed that he did not have any opportunity to go through the previous history of the complainant before the operation. He has further deposed that he then inspected the operation site. The uterus and right ovarian cyst had been removed and there was another cyst on the left side ovary and also there was a laceration on the anterior wall of the rectum.

Some important questions with his answers in the cross-examination are as under: Q. Has it come on record that R-1 called you on finding that there is a surgical problem in the light of messy adhesions? On reaching R-3 you found that some of the organs were removed. So what prompted you to stick on to R-3 Hospitals? Ans. I adopted the procedures mentioned in my version. The remaining left ovary (cyst) was removed, the next step to repair the injury to the rectum. I could not primarily suture the defect with simple sutures. Hence, the whole rectum and left colon had to be mobilised and then the rectum was completely divided at the site of injury and fresh anastamosis was performed using the stapler gun, because this was an emergency procedure to protect the anastamosis. I performed a de-functioning colostomy. I also released all the intestinal adhesions because these may have caused intestinal obstruction in the post-operative period. I also removed the appendix because any future operation on this particular patient even for appendicitis would have been hazardous. He had also stated that the whole ovary had become converted into a cyst. The whole left ovarian tissue was adherent and so he had removed piece meal. He was answered to a question that the ovarian cyst can be identified as a cyst even after it is ruptured. His answer to the question that by the time he had come to the operation theatre the cyst in the left ovary was already ruptured is, ''it is possible''.

Q. In spite of laparoscopy and hystero salphingogram, etc., is it correct to say that there is no way to study the anatomical changes so far as the petitioner is concerned? Ans. This particular patient, there were dense intra abdominal adhesions and so laparoscopy could have been impossible. Hystero salphingogram will not give any information regarding the ovarian cyst. So the best investigation is an ultra sound scan which done repeatedly only because this cysts appeared to be enlarging. This patient already has cancer of the rectum and from outside it was humanly impossible to say that the ovarian cyst was also not malignant.

Q. How did the injury to rectum occur? Ans. I was not present when it occurred. But, on looking at the organs the injury probably occurred while trying to remove the very densely adherent uterus, ovary and rectum. Appendix is a vestigular organ. It does not do us any good, often causes harm.

Q. I put it to you that you have cut the colon in a flash in order to facilitate the use of stapling gun? Ans. I did not bring the stapler gun to use on the patient. Colon was deliberately cut to do a safe joining because it was impossible to repair the defect with simple suturing. Stapler gun was only sent for when it was realised that its use would benefit the patient. Findings :

(A) Whether there wAs emergent necessity of hysterectomy? WAs there Any emergency for surgery? 1. The mAin contention of the complAinAnt is thAt removAl of uterus (hysterectomy) wAs not required when A pAtient wAs diAgnosed hAving A ''Cystic OvAry''. In this regArd it is the contention of the respondent No. 1 thAt cyst could become cAncerous becAuse previously complAinAnt wAs operAted for cArcinomA And, therefore, there wAs necessity of hysterectomy. In our view, this contention is without Any substAnce And bAsis. Merely becAuse previously the complAinAnt wAs operAted for rectum cArcinomA it would not be thAt cyst mAy Also hAve cAncerous effect. On this Aspect complAinAnt hAs relied on Exhibit P-29, letter dAted 30th April, 1991 of Dr. K. VinAyAchAndrAn NAir, who hAs cArried out ultrAsound study of the Abdomen And pelvis, (ultrAsound report is Exhibit P-28) wherein it hAs been stAted thAt tests results reveAled thAt everything wAs normAl And there wAs no need for Any future test. The only thing thAt wAs required wAs followup colonoscopy once A yeAr. The ultrAsound report dAted 16.2.1990 only reveAls "Left ovAry is normAl without Any spAce occupying lesion. Right ovAry is minimAlly enlArged in size And minimAlly cystic".

AFTER operation Dr. Nambiar has examined the complainant and has sent report dated 31.7.1991 (Exhibit P-30) giving short clinical history with diagnosis as under: "Sigmoid resection and colo-Rectal Anastomosis done in 1982 for Ca. Rectum. Now she has come with Rt. Ovarian cyst and THH with BSO done on 19.7.1991. There was difficulty in removing the cyst as it was tracking in between the loops of Bowel. While dissecting was accidentally cut into the rectum. Again colo-Rectal Anastomosis done. Appendicectomy also done and a temp. colostomy at the left flexure done. Pt. Started leaking faecal matter thro vagina from 9th day onwards. Hence the opening of the distal loop of the colostomy was temporarily closed. Still pt. is having rigor and yellowish fluid coming through the vagina. Request U.S. Scan to rule out any pelvic collection".

(b) The learned Counsel for the complainant further referred to "Principles of Gynaecology" authored by Sir Norman Jeffcoate, Emeritus, Professor of Obstretics and Gynaecology, University of Liverpool, at page 447 to the following effect: "The senile ovary is usually free but it is rare to see the ovary of a child or adult woman without at least one small cyst in it. The mere finding of cysts in an ovary should not, therefore, be regarded as being of pathological significance. Failure of surgeons to recognise this fundamental fact has led to many young women having a normal ovary removed in the course of appendicectomy". This establishes that there was no urgency or necessity of Hysterectomy.

(c) Further Dr. Rajan (R-1) ought to have waited till the course of Hetrazan 100mg. tablets (thrice daily) prescribed by Dr. Sahajanandan for eosinophilia which was found in the blood test of the complainant as the operation was not an emergent one. On this point in her cross-examination she has stated as under: "Q. If a patient has eosinophilia and if the operation is not emergent would you not wait till eosinophilia has become normal? Ans. If the physician says OK, then I will take up the case. The complainant was also given the medicine "Chymoral Forte" thrice a day for ten days. This was for shrinkage of the cyst. But without waiting for the result, the surgery was carried out. This has been specifically stated by P.W. 3 Dr. Vanitha Nair (sister of the complainant). Before carrying out the operation second ultra sound report was not obtained. On this aspect R-1 has stated in cross-examination that on examination of the complainant, cyst was there and, therefore, there was no reason for having second scan.

(d) As far as diagnosis is concerned, the complainant contends that the diagnosis of R-1 on 7.7.1991 was not correct. As evident from Ex. P-4, R-1''s diagnosis was "Right Ovary Cystic". Subsequently, after operation P.W. 1 (complainant) was found to have ovarian cyst in both the ovaries. So diagnosis of R-1 was apparently erroneous.

(e) It has also been pointed out that in cross-examination R-1 has stated that removal of uterus is called hysterectomy; for ''cystic ovary'' the relevant treatment is not hysterectomy; the ovary and cyst remains in the body even after hysterectomy. It is, therefore, rightly pointed out that the surgery carried out by R-1 was not connected with the ailment.

(f) It is being alleged by the respondents that complainant might suffer from cancer if the hysterectomy operation in R-3 was not carried out. This is blatantly a false defence. She was operated for cancer in 1982 after which there was no indication at all and the complainant was absolutely normal. In the Histopathology report (Ex. P-12 at p. 60), uterus, tubes and ovaries, rectal wall and appendix were sent for pathological examination and were found to be normal. This goes to show that there was no pathological problem at all and the complainant was normal.

The hospital (O.P. No. 3) had no proper facilities for any pre-operative or post-operative tests or for storing and providing blood and accordingly was not a suitable place for conducting surgery of this type. (i) In this regard a reference may be made to the deposition O.P. No. 1 in her examination-in-chief to the effect that: "We do not have a blood bank. We group the patients blood and send the samples to I.M.A. Blood Bank or I.S.B.T. Blood Bank (Attached to the City Hospital). We always keep one bottle of blood ready for major surgery. If we want extra blood we phone up I.M.A. Blood Bank and we get it, which is replaced by the patient''s relatives or friends". This part of the deposition amply shows that while carrying out the major surgeries, the Opposite party No. 1 used to keep only one bottle of blood ready.

(ii) The complainant alleges that during surgery no surgeon was kept standby, even after R-1 knew that she was doing this operation on a patient similar to that of complainant for the first time. In her cross-examination she had stated thus: "I had no occasion to do the operations as done in this case on a patient similar to that of the petitioner who had cancer rectum". It is further contended that ''being the first such case, she should have taken utmost care and caution right from the beginning as R-1 knew the history of the patient. In any case, in such a complicated case, before conducting surgery it was the duty of R-1 to call for surgeon who can perform such surgery. On this aspect there is no reason not to rely upon the evidence of P.W. 2, Dr. R. Karthikeyan, who has specifically stated that if it was a planned operation he would have postponed the surgery till the treatment is completed and if it is impossible to proceed with the surgery, the Surgeon either ought to have abandoned the operation or to proceed carefully in case if he is confident to tackle the situation.

In this view of the matter, learned Counsel for the complainant rightly contended that there was no necessity of total abdominal hysterectomy and that even pre-anaesthetic checkup conducted by Dr. Sahajanandan clearly shows that the complainant was asymptomatic and no palpable mass was noticed in the abdomen. Further, as per the medical opinion, in case of benign ovarian cyst, total abdominal hysterectomy was not at all necessary, and in such cases Cystectomy or Oophorectomy would have been quite sufficient. Post-operative treatment was also not proper. The suppository was placed at the colostomy and for this R-2 had fired the Nurse who placed it at the wrong place. This has caused intolerable pain to the complainant.

IN an operation of this complicated nature, the patient''s stomach was kept open for more than half-an-hour on the operation table to get the stapler gun from the residence of R-2, which in our view amounts to ''gross negligence'' and ''deficiency in service''.

KEEPING in mind the facts stated above we would refer to Spring Medows Hospital & Anr. v. Harjol Ahluwalia & Anr., I (1998) CPJ 1 (SC)=III (1998) SLT 684=(1998) 4 SCC 39 at 47, wherein the Apex Court has specifically laid down the principles for holding Doctors responsible in similar situation. The Apex Court held that: "Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly. We are indicating these principles since in the case in hand certain arguments had been advanced in this regard, which will be dealt with while answering the questions posed by us".

Thereafter, a similar view was expressed with regard to burden of proof in Savita Garg (Smt.) v. Director, National Heart Institute, IV (2004) CPJ 40 (SC)=VI (2004) SLT 385=(2004) 8 SCC 56. The Apex Court observed that : "Once a patient is admitted in a hospital it is the responsibility of the hospital to provide the best service and if it does not, then the hospital cannot take shelter under the technical ground that the surgeon concerned or the nursing staff, as the case may be, was not impleaded, and, therefore, the claim should be rejected on the basis of non-joinder of necessary parties. In fact, once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, and that as a result of such negligence the patient died, then in that case the burden lies on the hospital and the doctor concerned who treated that patient, that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing that doctor who treated the patient in defence to substantiate their allegation that there was no negligence. In fact it is the hospital which engages the treating doctor thereafter it is their responsibility. The burden is greater on the institution/hospital than that on the claimant. The institution a private body and they are responsible to provide efficient service and if in discharge of their efficient service there are a couple of weak links which have caused damage to the patient then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties".

(Emphasized supplied)

The evidence which is reproduced above leaves no doubt that R-1 was deficient in discharge of her duties. Admittedly she negligently cut the rectum and evidence reveals that there was erroneous cutting of ileum. Further there was no necessity of having emergent hysterectomy operation. At the most ovarian cyst was required to be removed. And, finally, there was no necessity of operating appendicitis in such a complicated situation. The complainant was subjected to (1) Total Abdominal Hysterectomy; (ii) Bilateral Salpingo Oophorectomy and repair of rectum; (iii) End to end Anastamosis of left colon; (iv) LUQ Loop Transverse Colostomy; (v) Appendicectomy burying stump; and (vi) Repair of small intestines. For no fault of her these uncalled for operations were performed on the complainant for the best reasons known to the respondents. Hence, it is a case of gross medical mistakes by which complainant is living crippled vegetation life.

HENCE, the complainant is entitled to receive compensation for the damages suffered by her. In our view, no amount would be sufficient to compensate the complainant. The complainant has stated that she had incurred Rs. 3,25,000/- towards hospital bills, medicines, the details of which have been given in her complaint. She has also claimed Rs. 6,25,000/- towards future expenses and damages. Considering the suffering of the complainant and the mental agony undergone by the complainant and her family members, we feel that the amount claimed as compensation is just and reasonable. Accordingly, the complaint is allowed. No order is required to be passed against the R-1 as she is dead. Respondent Nos. 2 and 3, namely, Dr. P.S. Binu and Vijaya Hospital are jointly and severally held liable to pay the said amount of Rs. 9.5 lakhs with interest at the rate of 9% p.a. from the date of the complaint till the date of payment. The respondent Nos. 2 and 3 are also directed to pay costs of Rs. 25,000/- to the complainant. Complaint allowed.