Ovary Removed Sans Consent, Mop pad left inside Abdomen: TN Private Hospital Doctors Told to Pay Rs 25 Lakh Compensation

Chennai: The circuit bench of Tamil Nadu State Consumer Disputes Redressal Commission in Madurai recently directed two doctors of a private hospital to pay Rs 25 lakh compensation to a woman for placing a mop pad inside her lower abdomen while conducting surgery to remove an ovarian cyst.

Apart from this, the consumer court also noted that during the surgery, the doctors removed the patient's right ovary without obtaining valid consent and even during follow-up visits, they did not explain this to the patient. 

The history of the case goes back to 2016 when the complainant had consulted Dr. Dhas, an Ob-Gyn, at her hospital. Back then, the patient was diagnosed as having Cyst in her ovary and the scan reports noted it to be 'Primary sterility with Chocolate Cyst (R) Ovary'. 

As per the advice of the treating doctor, the complainant was admitted in the treating hospital and the said gynaecologist and the consultant surgeon conducted the operation for removal of the Cyst on the same day.

However, as per the complainant, even after discharge on 24.03.2016, she suffered continuous abdominal pain and vomiting. Therefore, she consulted the treating doctor again and a scan was taken. The reports indicated that "Both Ovaries appear normal and The impression is normal sonography study of uterus and ovaries." Another scan was taken on 02.08.2016, when the doctor diagnosed the problem as Peptic Ulcer.

Since the pain subsisted, another scan was taken on 31.08.2016 for her abdomen and the sonography study of the liver, GB, Pancreas, Spleen, Kidneys, Bladder, Uterus & Ovaries.  However, getting no relief from the pain, the patient consulted BHEL Hospital, where a CT scan was taken on 22.12.2016 and the report revealed that the "right ovary is not visualized" and there was a "possibility of foreign hody in the mid-abdomen displacing the bowel loops."

Therefore, in the BHEL hospital, a surgery was conducted on 26.02.2016 and the doctors there removed a foreign body- a mop pad- along with a part of bowel loops that were affected by the presence of the foreign body.

The complainant alleged that the treating gynaecologist and surgeon at the first facility had negligently performed the surgery and closed the wound by placing the mop pad carelessly inside the abdomen. She also claimed that the doctors never disclosed that her ovary was also removed during the first surgery. She came to know about this at the time of treatment at BHEL Hospital. Therefore, alleging negligence, the complainant demanded Rs 99 lakh as compensation.

On the other hand, the treating doctors submitted that the patient was diagnosed with primary sterility with a chocolate cyst in the right ovary. They submitted that the chocolate cyst of the ovary is caused by endometriosis, a painful disorder in which the tissue that normally lines the inside of the uterus (endometrium) grows outside the uterus and forms when a tiny patch of endometrial tissue (the mucous membrane that makes up the inner layer of the uterine wall) bleeds, sloughs off, becomes transplanted, and grows and enlarges inside the ovaries. As the blood builds up over months and years, it turns brown. When it ruptures, the material spills over into the pelvis and onto the surface of the uterus, bladder, bowel, and the corresponding spaces between. This can in the long run turn malignant.

They further submitted that the patient was advised to undergo a diagnostic scopy with right oophorectomy, a surgical process to remove one or both ovaries. As per the doctors, they decided to perform a diagnostic laparoscopy to remove the chocolate cyst. After the process was done, it was found that there was a chocolate cyst adherent to the right ovary. Since, it could become malignant, consent was sought from the complainant's husband and the procedure was performed accordingly. 

Explaining how the surgery was conducted, the doctors further claimed that the post-operative period was uneventful. Further submitting the details of the follow-up treatment when the complainant came back to them, they claimed that there was no negligence on their part and prayed for the dismissal of the complaint.

The counsel for the doctors insisted that even if a foreign body was found inside the patient's abdomen, it was not placed by the treating doctors. Referring to the possibility for the complainant to undergo some other surgery after the surgery at the treating hospital, the counsel argued that some other doctors might have carelessly placed the foreign body in some other hospital.

While considering the matter, the consumer court took note of the Discharge Summary and the procedure. Thereafter, the Commission noted that the diagnostic scopy as well as oophorectomy (surgical removal of one or both ovaries) were done simultaneously.

Highlighting the importance of seeking valid consent for removing the ovary, the consumer court noted,

"When they really intended to remove the ovary a special consent and detailed informed consent, after explaining the necessity to remove the ovary must be obtained from the complainant. Because in this case the complainant approached the doctor for primary infertility for 1 ½ years. So, within two years of marriage the complainant approached the doctors for her problem. In such a situation removing ovary is some what minimizing the chances of pregnancy in future. It is utmost duty of the Doctors to enlight the complainant, the emergency for removing such ovary."

The Commission opined that the doctor did not plead convincingly that they had explained to the complainant the necessity and emergency of removing the ovary. 

"The consent form was marked in the case sheet Ex.B2. The consent is obtained in a printed form in which it has been mentioned primary sterility chocolate cyst right ovary diagnostic scopy might oophorectomy/laparotomy. The opposite party, initially wanted to perform only laprascopic surgery, since the cyst was in larger size open method was preferred. So, the initial planning of laprascopic surgery was converted into the open surgery. For the material procedural change, there is no consent obtained from the complainant that too in the middle of the surgical procedures," the Commission observed.

The Consumer Court also took note of the nurses' daily record endorsement of consent and noted that the facts explained to the complainant were written in Tamil in which, the proposed removal of the ovary was not at all explained, informed to the complainant.

"On the other hand the complainant was simply informed as if, the complainant is having a small cyst (e Ph;fl;b) and it needs only a simple surgery. From this alone, it is inferred, that the complainant was informed only with regard to small cyst and removed of the above small cyst by simple surgery. Nothing more was explained about the above laprascopic or open method or removal of ovary etc.," noted the Commission.

At this outset, the Commission referred to the Supreme Court order in the case of Samira Kohli vs Dr. Prabha Manchanda & Anr, where the Apex Court had noted that the 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not.

However, referring to the top court's order, the Consumer Court noted -

"When applying those principles in this case the consent obtained from the complaint was not a proper consent. Moreover, as held by medical literature when a part of the body has to be removed a special consent for its necessity with explanation must be informed to the complainant. In this case the above consent was lagging. So, it is the first negligent on the part of the opposite party doctors."

"Furthermore... pre-anesthesia record, not filled up adequately, in the above record nothing has been mentioned about pre-surgical test and test for anesthesia etc.,. So it is the second negligence committed by the opposite parties," it further observed.

The Consumer Court further noted that after the surgery, another scan was taken which showed that "both ovaries appear normal". The Commission opined that after seeing the report, the doctor could have easily concluded that the report was mistaken and could have informed the same to the complainant. However, the doctor failed to note this fact and explain it to the complainant and casually prescribed medicines instead. The Commission noted it to be another instance of negligence committed by the Doctor.

"Then again on 02.09.2016 a further scan report was taken in which also it is mentioned as uterus seems to be normal the uterus is filled with homogeneous myometrial echoes. Even in the scan report removal of ovary was not mentioned. It is the doctors duty to correct scan report and correlate with the earlier medical history or records. The scan was taken under the supervision of the opposite party have been signed by the doctor of the opposite parties hospital, and their qualifications in this aspect not explained. Either scan report were wrong or it was purposefully mentioned by the opposite parties to make the patient to believe that her ovaries were intact. So, having removed her ovary by the doctors and subsequently have a report as if both ovaries are normal amounted to medical negligence and unfair trade practice and this commission did not feel that the above mistake is an error of judgment," the Commission further noted.

Referring to the fact that the BHEL doctors removed a mop pad from the lower abdomen of the patient, the Commission noted that it clearly proved that at the time of surgery performed by the doctors, they carelessly placed the mop pad inside the complainant.

"The opposite parties in their written version clearly admitted that they have used two MOP PAD at the time of surgery. From this admission it is concluded that one MOP PAD was carelessly kept inside the abdomen and the incision was closed by the opposite parties doctor. Further, the contention during argument about the possibility of keeping the MOP PAD by some other Doctors during some other surgery is not proved by the opposite parties and there is no pleadings to the effect," observed the Commission.

Considering these factors and the pain and suffering that the complainant had to face, the Consumer Court directed the treating doctors to pay Rs 25 lakh to the complainant as compensation for mental agony and medical negligence. They were further directed to pay Rs 10,000 as cost of litigation.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/madurai-scdrc-239415.pdf

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