Emergency Hysterectomy post Delivery without proper consent: Hospital told to compensate Rs 3 lakh
Mumbai: Noting that the treating doctors and the hospital are guilty of medical negligence and there is documentary evidence of deficiency in service by them, the national consumer commission upheld the state forum's order in the matter of a patient's delivery gone wrong and her subsequent hysterectomy. In its verdict, the NCDRC refused to intervene in the order of the state commission of increasing the compensation amount to Rs 3 lakhs adding to Rs 40,000 earlier awarded by the district forum.
The case goes back to the year 1995 when the pregnant patient went to the UP based hospital for a check-up. She was informed by the doctors that her pregnancy was normal and for the mild pain in the head, she was given pain-relieving tablets.
Later, she was admitted to the hospital by her family members and a normal delivery was assured. After some time, the staff informed the family members that the patient gave birth to a child and some medicine will be required for the health of the child. In the petition, the patient, who was also the complainant on the case, stated that the hospital and doctors obtained the signatures of the guardian on a blank paper and handed over the child saying that the dead child was born. Her condition became serious and therefore, after getting discharged, she was taken to another hospital, which referred her to B.H.U. Hospital where she was treated for over a month.
It had been alleged that she, through doctors of B.H.U. came to know that the doctor of the accused hospital had removed her uterus and now she cannot give birth to a child. Aggrieved by the act of negligence by the hospital and the treating doctors, the patient had filed the complaint before the District Forum.
The District Consumer Disputes Redressal Forum, vide its order had partly allowed the complaint and directed hospital and the doctors to pay a sum of Rs.20,000/- the amount spent on treatment and Rs.20,000/- as compensation for mental harassment to the complainant.
When the matter reached the State Commission, it dismissed the appeal of hospital and doctors and allowed the appeal of the complainant. The State Commission ordered that the order of District Forum is modified to the extent that the accused parties shall pay a sum of Rs.3,00,000/- to the complainant along with interest @ 6% per annum from the date of complaint.
Aggrieved with the state commission's verdict, the hospital and doctors reached to the doors of National Consumer District Redressal Commission and challenged the said order contending that the State Commission has committed a jurisdictional error while passing the impugned judgment and thereby allowing the claim as prayed for by the patient, without returning the finding as to whether the doctor failed to perform her duties well in exercise of ordinary degree of professional skill and competence while treating the patient in peculiar facts of the case, particularly so when the doctors at BHU Medical College pursued the same course of treatment by taking up the thread where the revisionists had left off.
The hospital and doctors further relied on the apex court observation underlining that the medical science is a complex subject and assistance of expert in appreciating the course of treatment is most warranted, perchance, without making any effort to have the expert's opinion, decided the case on the face of the ordinary evidence given by the witnesses, ignoring the revisionist's request. With this they stated that the forums did not care to take the expert opinion in this case.
It was submitted that at the time when the consent of the patient's father was taken, it was a situation of grave concern because the operation was to be conducted without any delay as the respondent carried a dead child in her womb and her life was in extreme danger. Therefore, in haste, the relative/ attendant whoever was present from her family was available at that time, was informed about the gravity of the situation and the required treatment in response and accordingly, the consent of her father was taken.
The revisionist right in the inception and well within the period of indemnification clause of the insurance, informed the District Forum while filling the written statement but neither the District Forum nor the State Commission cared to consider the same whereby the revisionists could have been indemnified, if at all there was any negligence, warranting award of damages.
In response, the patient submitted that she lost her child, as well as doctors at the hospital, have also removed the uterus in order to shield their mistake. In fact, the State Commission has rightly analyzed the deficiencies on the part of the hospital and doctors and has clearly observed that not only the uterus was removed without any consent of the complainant or of any of her relatives, the doctors also cut the iliac artery of the complainant which led to excessive bleeding and the hospital discharged the patient hurriedly.
After hearing the contentions of both the sides, the bench presided by Honourable judge Prem Narain noted the observations of the state commission in view of the contention of the hospital that the fora had given their findings and decision without seeking any report from any expert.
It said that the following observations of the State Commission are worth noting:
"there is no error in the order passed by the District Consumer Forum with regard to the deficiency in service committed by the opposite parties in the treatment of the complainant. The facts are evidenced on record that the consent for removal of the uterus was neither taken from the complainant which was necessary nor even from the father of the complainant. The alleged consent from the father of the complainant shows that it was taken merely for operation and later on in that consent letter, it has been added inserting thereby that he, i.e., the father of the complainant is inclined to get the uterus removed."
"These words in the alleged consent dated 16.12.1995 are apparently visible to have been added subsequently for which there is no hesitation to held that there was no consent of the complainant or even of her father to get the uterus removed. It is in our view a serious negligence on the part of the opposite parties and the appeal filed by the opposite party may only be dismissed on this ground too but we have found further negligence too on the part of the opposite parties which is evidenced from the record of BHU that the iliac artery was cut down by the opposite parties and cervical stump was left inside by the opposite parties and due to which the excess bleeding, i.e., uncontrolled bleeding started and the patient was hastily discharged by the opposite parties".
From the above observations of the State Commission, the judge held that the documentary evidence is very strong to prove the deficiency of the opposite parties and no separate expert evidence is required to prove medical negligence.
"The deficiency on the part of the opposite parties in respect of getting the consent of the father for removal of uterus of the complainant is proved from the consent letter itself where the manipulation has been proved by the State Commission. Therefore, no expert evidence is required to prove the same. Similarly the evidence from the medical treatment papers of the BHU hospital is sufficient to prove that the iliac artery was cut due to negligence of the opposite parties. The documents of BHU hospital cannot be treated as something less than an expert report. Thus, no separate expert evidence is required to prove the deficiency of the opposite parties in respect of cutting of the iliac artery. Once these two negligent acts are proved, the other arguments advanced by the learned counsel for the opposite parties such as professional qualification of the doctor etc. will have no salutary effect. Thus, I do not find any merit in the revision petition No. 356 of 2015 filed by the opposite parties.
ATTACHED BELOW IS THE ORDER IN DETAIL
