VARSHA GAJJAR Vs DR. TIWARI'S MATERNITY & NURSING HOME & ANR.

The complainant, Smt. Varsha Gajjar (hereinafter- referred to as "patient") delivered her second male baby by Lower Segment Cesarean Surgery (LSCS) at Dr. Tiwari''s Maternity & Nursing Home, Raipur, OP-1. It was performed by Dr. Kamla Tiwari, OP-2, on 04.02.1998. It was alleged that, prior to the complainant''s operation, the OP performed surgery on other patient; hence the operation theatre (OT) was not sterilized or fumigated. After LSCS, OP performed tubectomy also, without consent of patient, thus it was against the prescribed norms. After 24 hours, patient suffered fever up to 102? F, with pain in lower abdomen. OP treated her by antibiotics, but the pain went on increasing. The operated wound was not healed, pus discharge continued. In such a condition, on 11.02.1998, the patient was discharged from OP-1 nursing Home, with instructions to report on alternate day, for dressing of the wound. The complainant paid Rs.12,000/- to OP, for which no receipt was issued. The nursing staff was untrained; Dr. Kamla Tiwari ignored patient''s worsening condition, did not carry out any necessary investigations. Again, patient was admitted on 07.03.1998, and was given treatment for TB, to cover up OP''s previous careless treatment. Finally, OP advised culture and sensitivity of the pus. It was alleged that the said infection could be from the hospital i.e. acquired from the unsterilized operation theatre. The patient was further advised antibiotics, on 25.3.1998. CT scan and USG study was performed at ''Virdi Hospital and Diagnostic Centre'', Raipur and the reports were sent to Vadodara, for second opinion. The doctors at Vadodara were surprised to see the report and advised for immediate surgery. Therefore, the complainant/patient was shifted to Vadodara and was admitted to ''Ashirvad Hospital'', on 29.03.1998. There, she was operated by a Vascular Surgeon, Dr. Vijay Thakore, along with Dr. (Mrs.) Mohini Mirchadani, a Gynecologist. During operation, pus was removed, and the ovary, fallopian tube, dead tissues were also removed. The pus for C&S was sent and it was reported as, Methicillin Resistant Staphylococcus Aureus infection and it was resistant to antibiotic therapy. Therefore, alleging medical negligence against the OP for causing the post C-section infection, the complainant, on 20.12.2000, filed the complaint before the State Consumer Disputes Redressal Commission, Madhya Pradesh, Bhopal (hereinafter-referred to as "State Commission") and prayed for compensation of Rs.18 lakhs.

The State Commission, after adducing the evidence and the medical records, dismissed the complaint, on 02.06.2010. Hence, aggrieved by the impugned order of the State Commission, the complainant, on 28.06.2010, filed first appeal before this Commission.

We have heard the learned counsel for the parties; both the counsel filed their written arguments. We have perused the evidence on file. The counsel for complainant/appellant reiterated the facts and stated that, the OP ignored the patient''s prolonged continuous fever and throbbing pain for 49 days, in lower abdomen, due to large abscess in the abdomen. Hence, she had to suffer a lot, she got operated at Vadodara and incurred expenses due to negligence of OP-2.

The rival contentions from the counsel for OP are that, Dr. Kamla Tiwari, was a senior doctor, having 47 years'' experience, she was the sole proprietor of Tiwari Nursing Home (OP-1), who died during the pendency of the matter. Therefore, her liability cannot be shifted to her legal heirs. It is also submitted that complaint was barred by limitation.

Further, it was submitted that, C-section of the patient was performed on 04.02.1998. There was no pus for 3 to 4 days, after operation, except, only mild-fever on the 4th post-operative day. The OP-2 examined the surgical wound and he found it to be quite healthy. The urine and blood of the patient was tested on 8.2.1998, and found it to be urinary infection. Hence, appropriate antibiotics like injection Cefotaxime and Metrogyl infusion were started. The fever became normal on the next day, the wound was healthy, there was no pain and the patient was discharged on 11.2.1998. Thereafter, the patient came to OP on 19.2.1998, with complaint of fever with chills. After routine hematological investigations, urine and blood smears for malarial parasites, the patient was advised Tab Augmentin TDS, Crocin, Becosule and was called for review, after three days. On 24.2.1998, patient had fever again, since the previous evening, with chills, hence antimalarial drugs were given.There was supra pubic tenderness. The PV showed normal involution of uterus, the Augmentin was continued. The patient visited OP again, on 26.2.1998 and 07.3.1998, for complaints of having fever on and off. The USG showed superficial pus collection about 2-3CC in the anterior abdominal wall only. On the same day, the OP alongwith Dr.(Mrs.) B Tiwari, M.S., drained the pus on the same day and sent for C/S to Raje Path Lab. Thereafter, the patient preferred to report for dressing from her home, which was very near to the nursing Home. The C/S report of Pus revealed coagulase positive staphylocooci and urine culture showed E.Coli(2.2 Million/CMM). Accordingly, the medicines were prescribed. Dr. S.K. Tiwari prescribed T.B. medicines because the fever was not receding, for long time, the ESR was very high (124 mm/hr), it was an empirical treatment for TB. The counsel further submitted that, the suppurative changes in endometrial tissue may be due to patient''s own poor hygiene. The fever subsided, there was no fever at the time of discharge. The wound was healthy.

We have perused the medical record and evidence on file. We agree with the observations made by the State Commission; which has decided correctly, on the point of sterilization or fumigation of OT, and about the consent. We have noted that the OP-1 hospital OT had HEPA filters also. None of other three patients who were operated upon by the OP No. 2 in the same OT, showed any signs of infection. Therefore, we do not find any lapse in the sterilization of OT. Regarding consent for tubectomy operation; it was given by patient''s mother, as patient''s husband was at Vadodara, on the day of LSCS. Hence, it was a valid consent.

Now, the main question which swirls around in this appeal is; Whether, OP-2, failed to take proper post-operative care, which led to abscess formation and 2nd operation at Vadodara? 1. The patient had developed fever of 102?F -104?F along with, throbbing pain in abdomen, on 08.02.1998, but OP-2 discharged her on 11.2.1998. Also, despite the fact that pathology report dated 19.02.1998, showed high leucocytes count and negative for malarial parasites, the OP-2 prescribed malarial treatment i.e. Tablet Metacalfin and again, on 26.02.1998, changed to another antimalarial drug Tab. Resochine. Even chest x-ray done on 09.03.1998, was normal, but all of sudden, from 15.03.1998, the OP switched over to the medicines for tuberculosis, without any confirmation of tuberculosis. It should be borne in mind that high ESR is noted in almost all patients, suffering from infection, tumor or any chronic illness. Hence, the patient had neither malaria nor tuberculosis and despite this, OP gave treatment for prolong period, which resulted into worsening of the condition of the patient. The OP did not perform pus C & S at early stage, but was done, on 09.03.1998 i.e almost after one month and reported on 11.03.1998, as presence of Staphylococci (Coagulase Positive) organisms.

We have perused, CT scan report of Virdi Hospital, done on 25.03.1998, which gave its findings and impressions as follows:-

Two irregular soft tissue intraperitoneal space occupying lesion.

At left iliac fossa in close relation with rectus abdominis and external oblique adbominis muscle with the thickening of these muscles. The morphology of the lesion is suggestive of indurated inflammatory mass with abscess."

Even the repeat USG screening, done on 25.3.1998, by Dr. Sanjay Tiwari, showed similar findings.

It is pertinent to note that the affidavit of Dr. Vijay Thakore, who performed 2nd operation at Vadodara, stated that post LSCS, the patient was treated, for a long time, for fever, which led to resistance of Methicillin Resistant Staphylococcus Aureus (MRSA). The patient took opinion(s) from eminent surgeons from Vadodara, thereafter; she went to Vadodara at Ashirwad Hospital and underwent surgery at the hands of Dr. Vijay Thakure, a Vascular Surgeon. Dr. Thakore mentioned the operative findings, as below:- "That, on opening up the lower abdomen, she was harboring a PUS collection in her pelvis, at the site of original surgery.This pocket of pus was removed in toto, along with her Right Ovary and Fallopian Tube, which was found to be lying in the area of the pus collection, Abscesses were found in the Right side of anterior abdominal wall of 4.00 X 3.00 cms size, Left side of anterior abdominal wall 4 x 4 cms size, and in the Right broad ligament involving Right Ovary and Fallopian Tube, hence needed to be removed."

"That confirmation of the presence of infection was obtained by Histopathological examinations of the tissues removed, as also a Culture and Sensitivity Test of the pus."

"That, post-operatively, she had to be treated for a long period of time, as the infection proved to be a resistant one, caused by the presence of Methicillin Resistant Staphylococcus Aureus.After completion of antibiotics, she recovered satisfactorily and became fit to resume her normal duties, from 25.05.1998."

Thus, it is clear that due to improper care and without any justification, the OP-2 administered several medications, like antibiotics, anti- malarial drugs and anti-tubercular drugs, for 49 days. There was no cure, but it led to collection of abscess in the abdomen, hence OP-2, is held liable.

On the other hand, it is pertinent to note that the patient had not followed the advice of OPs, as per discharge ticket. Patient did not follow the instructions of OP-2 but, consulted different doctors, after LSCS. The patient had not discussed or showed the CT scan report to the OP-2, but she had gone to Vadodara, for further treatment, on her own accord, it was without any reference from OPs. Hence, it was a Contributory negligence.

Therefore, considering the entirety, we set aside the order passed by the State Commission and allow this appeal. The OP-2 is liable for the deficiency in service and breach in the duty of care, to the operated patient. Considering the element of contributory negligence, we are of considered view that the compensation of Rs.2 lacs, will be just and proper in this case. We have also noted that, OP-2 died during pendency of this case, hence we direct the hospital (OP-1) to pay total compensation of Rs.2,00,000/- to the complainant; and Rs.10,000/- towards the costs, within 60 days'' from the date of receipt of this order, otherwise after expiry of 60 days, the total sum of Rs. 2,10,000/- will carry interest @ 12% pa, till it''s realization.