M SOBHA Vs. RAJAKUMARI UNNITHAN

JUDGEMENT

(1.) The plaintiff in O.S. 229/1989 on the file of the Principal Sub-Judge, Ernakulam is the appellant. Plaintiff filed the suit for damages against the first defendant Doctor, second defendant Hospital in which she was working and the third defendant Insurance Company from whom the first defendant has taken a policy to cover the professional risk. Plaintiff Sobha is a lady aged 35 years and was working as a teacher in the Central School at Coimbatore. She had an 8 year old son and her husband was employed as a Medical Representative. Sometime in June 1988 she decided to have a second child and for that purpose approached first defendant who was a reputed Gynaecologist working in the Sree Sudheendra Medical Mission, a renowned Nursing Home in Cochin city. Plaintiff was perfectly healthy at that time. On 17-6-1988 she met the first defendant in the Hospital. First defendant advised her to have a Tube Testing. This was intended mainly to clear the obstructions, if any, in the fallopian tube blocking the delivery of ovum into the uterus. The procedure was simple viz., blowing of air through an apparatus into the vegina under a controlled pressure. The procedure lasts only about 5 minutes and is quite safe when applied with average skill and after normal precautions. Plaintiffs underwent this test on 18-6-1988 in the morning hours from the Hospital under the supervision of first defendant. She felt some uneasiness and a sense of vomiting. She was kept in the Hospital for 11/2 hours and discharged. Sometime in the evening on that day, plaintiff's husband met the first defendant in her house and reported that his wife was not well and was feeling pain and uneasiness. On that night she was taken to the Hospital where first defendant was working and the Doctor noted the symptoms in Ext. B1. The patient complained of pain in the abdomen and discomfort. It was noticed that pelvic region was little distended and she was admitted in the Hospital. Medicines and treatment was prescribed. She was discharged on 19-6-1988 morning. Ext. B2 is the record kept in the Hospital relating to this patient. The final dignosis was "abdominal distension relieved". On 22-6-1988 plaintiff developed fever and she met first defendant Doctor on 24-6-1988. Then she was referred to a Physician Dr. T.L.P. Prabhu, examined as PW2. Dr. Prabhu noted the clinical history and particularly noted "left tube patent, right partial block", "slight pulling from left side, temperature above normal" and has also noted PID standing for pelvic inflammatory disease. The Doctor could easily dignose the inflammatory condition of the pelvic region and in consultation with the first defendant he prescribed medicines to cure the infection. On 26-6-1988 first defendant issued Ext. X3 certificate to the plaintiff obviously for the purpose of getting leave (stating that she is under her treatment for pelvic inflammatory disease) and she has advised rest for a week from 27-6-1988. In spite of the medicines prescribed the infection did not subside and on 29-6-1988 she was admitted as inpatient No. 1174. She was in the second defendant Hospital till 9-7-1988 under the treatment of Dr. Prabhu and Syamala Menon and her condition was described as UTI i.e. urinary tract infection. Ext. A1 is the card granted by the Hospital to the patient which shows the chest X-ray and other tests taken. When she was discharged she was asked to report for a review after 4 days. Medicine were also prescribed. I may at this stage state that Dr. Prabhu's evidence shows that first defendant was consulted till 28-6-1988 when the plaintiff's husband expressed some dissatisfaction and at their request Dr. Prabhu referred the case to Dr. Asha Saraf, another reputed Gynaecologist of the city. As I stated earlier, plaintiff was discharged from the Hospital on 9-7-1988. According to Dr. Prabhu he did not meet the patient thereafter. But the plaintiff has produced Ext. A2 card issued by the Hospital on 3-8-1988 for consulting Dr. Prabhu which shows two dates viz., 6-8-1988 and 10-8-1988 on the back side. Barring the testimony of PW1 and this card there is nothing to show that Dr. Prabhu attended on her after 9-7-1988. Thereafter at the request of the plaintiff, Dr. Prabhu referred her to Dr. Sasikala Prabhu, a Gynaecologist examined as PW3. Ext. A3 is the report signed by Dr. Prabhu on 24-8-1988 in which also it is mentioned that left tube patent and right tube partial block. Though the patient was under treatment in the second defendant Hospital till 9-7-1988, the entire case sheet was not produced and the patient's condition from 29-6-1988 to 9-7-1988 is not fully borne out by Ext. B2. We do not know the directions given by Dr. Asha Saraf under whose consultation she was during that period. The Manager of the Hospital has stated that the said records are not traceable. Thereafter PW 3 Dr. Sasikala examined the patient and found a persistent discharge from the vagina and pus was coming through the vagina. Ultra sound scanning was done on 18-8-1988 and the report is marked as Ext. A4. It shows that uterus was normal by echo appearance, multiloculated cystic masses were seen on both sides of uterus, both kidneys normal by sonographic appearance and no back pressure effect was noticed. PW 3 noticed that the uterus of the patient was normal but the right tube show hydrosalpinx i.e. blockage of tube distended with fluid. The right overy contained a cyst of 5 cms. in diameter which is adherent to the intestines, cacum and appendix. Left overy was found enlarged. The overy, fallopian tube, uterus and the intestines were found infected and there was danger to the life of the patient. She referred the patient for a second opinion to the Professor of Gynaecology, Medical College, Trichur Dr. Navaneetham who examined the patient and suggested an immediate surgery of laparotomy or hysterotomy at the earliest. Ext. A5 is the discharge summary issued by PW 4. Thereafter PW 3 performed the surgery and removed the overy, tube and uterus of the plaintiff. Ext. A6 is the follow up card issued from Dr. Kunhalu's Nursing Home wherefrom the surgery was done. Thereafter on 21-2-1989 plaintiff issued Ext. A8 lawyer notice to defendants 1 and 2 claiming damages for negligence to which they sent Ext. B3 reply on 28-2-1989 maintaining that there was no negligence on their part and they were not liable to pay any damages.

(2.) Thereafter the suit was filed narrating the above facts and alleging negligence on the part of the first defendant Doctor and stating that the second defendant Hospital is vicariously responsible for negligence. Rs. 13,000/- was claimed as damages towards expenses for surgery and medicines, Rs. 5,000/- towards travelling and other incidental expenses, Rs. 10,000/- towards loss of income as she had to be on loss of pay, Rs. 15,000/- as damage for mental and physical pain and Rs. 25,000/- for the loss of vital organs, making a total claim of Rs. 68,000/-.

(3.) Defendants filed a written statement admitting that the Tube Testing was done on 18-6-1988 on the plaintiff by the first defendant, that as the plaintiff was suffering from fever she consulted the Physician of the same Hospital on 24-8-1988, that she was admitted on 29-6-1988 for the said symptoms and was discharged on 9-7-1988 after fully recovering from the illness and discomfort. Thereafter nothing was heard about her. They alleged that due care, attention and caution was taken and there was no negligence on their part. Third defendant Insurance Company was impleaded on the contention of the first defendant that she is insured with them.