D. Srivaili v/s Shobha Balkrishna Recent judgement

Brief Facts of the Case:

The Complainant was suffering from continuous pain in the right side of the abdomen and got herself examined at CGHS Hospital at Kanchanban. After examination, she was referred to Dr. Shobha Balkrishna. On consulting her, the complainant was advised for need of surgery for removal of appendix. The Operation was conducted at Gagan Mahal Nursing Home. The complainant alleged that in addition to removal of appendix, her right ovary and part of fallopian tube was also removed. Dr. Balkrishna told her that her right ovary had a big cyst and part of the fallopiantube was bent and adhere to the ovary therefore that part was removed so that it does not cause any problem in future.

Dr. Balkrishna has been joined as Opposite Party No.1 and Gagan Mahal Nursing Home has been joined as Opposite Party No.2. The Complainant has alleged that removal of the right ovary and part of the fallopian tube has jeopardized chances of her marriage and reduced her chances of becoming pregnant by more than 50%. The Opposite parties appeared and resisted the Complaint and the Complaint was dismissed.

Issue:

Whether or not the Opposite Party No.1 was negligent in removing right ovary and part of fallopian tube of the Complainant?

Arguments:

It was argued by the Opposite Parties that after opening the abdomen a large cystic mass on the right side of the pelvis with dark coloured fluid embedded in the pouch of Douglas with adhesions to surrounding organs were found. The right ovary was enlarged and the whole ovary was replaced by a large cystic mass. No normal ovarian tissue could be seen separately. Endometriosis was also present at the cyst. The right fallopian tube was also stretched out distorted and adhered to cystic mass. Such an enlarged distorted adhered tube will have defective mobility (i.e. propagation of fertilized ovum towards the uterine cavity, the usual site for implantation which is the most important function of the fallopian tube. A defect in the mobility of the tube predisposes ectopic (or Tube) pregnancy which could be a dangerous condition, and hence distorted tube was required to be removed.

It was also argued that the removal of the disease ovary does not compromise future fertility and that the complaint needs to be dismissed.

Discussion on the Issue:

At the instance of the complainant a number of witnesses have been examined through a Commissioner appointed by natural Commission. However in their deposition there is nothing relevant to the issue was revealed. Similarly a number of references have been made to medical text books by both sides. It should be enough to make reference to the text book of Gynaecolgy, Jeffcot by Lipschitz Law which clearly states that the removal of diseased ovary does not compromise future fertility.

It was deposed that, after opening the abdomen it was clearly seen that the right ovary was diseased and the cyst and ovary could not be separated and that the fallopian tube was twisted and could cause health problems in the future.

The Complainant herself had given a written consent that any other operation can be performed in the best interest of her health. In this case the operating surgeon felt that in the interest of the complainant the diseased ovary and part of the fallopian tube had to be removed. Subsequent to the operation the histopathology report confirms the disease in the removed organ. This clearly shows that there has been no negligence on the part of the surgeon at any stage of the operative procedure. As a matter of fact, they had taken whatever best steps are necessary in the best interest of the complainant.

In view of the above the Commission did not see any substance in the complaint and it was dismissed accordingly.

Important Points

• Any other operation / surgery, duly substantiated by the medical science, by the medical professional, which though not known earlier, but discovered during the surgery, in the best interest of the patient, cannot amount to negligence or deficiency in services, even if there is no informed consent.
• Court Commissioner is a special officer appointed by the Court to collect evidence. It may also examine t h e witness if for some personal or other genuine reasons, the witness is unable to be present in Court.