Punjab

Patiala

CC/17/459

Rishbh Bhalla - Complainant(s)

Versus

Aggarwal Hospital - Opp.Party(s)

Sh. B.S. Sodhi

24 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PATIALA.

Consumer Complaint No.	:	CC/459/2017
Date of Institution	:	13/12/2017
Date of Decision	:	24/03/2023

 

Rishabh Bhalla, aged about 27 years s/o Sh.Nirmal Kumar Bhalla, resident of 1084, Urban Estate, Phase-2, Patiala.                                                                                                                                                                          …………...Complainant

 

                                      Versus

1. Aggarwal Hospital, 2-A, Royal Enclave, Near White House, Urban Estate, Phase-1, Patiala, through its Prop./Dr.Sailesh Aggarwal.
2. Dr.Sailesh Aggarwal of Aggarwal Hospital, 2-A, Royal Enclave, Near White House, Urban Estate, Phase-1, Patiala.
3. Dr.Pancham Pal of Aggarwal Hospital, 2-A, Royal Enclave, Near White House, Urban Estate, Phase-1, Patiala.
4. The Oriental Insurance Company Ltd. 4E/14 Azad Bhawan Jhandewalan Ext. New Delhi.                                                                                                                                                                                                         …………Opposite Parties

Complaint under the Consumer Protection Act

 

QUORUM

                                      Hon’ble Mr.S.K.Aggarwal, President

                                      Hon’ble Mr.G.S.Nagi, Member        

 

PRESENT:                   Sh.B.S.Sodhi, counsel for complainant.

                             Complaint against OP No.2 is dismissed as withdrawn.

                             Sh.Harvinder Shukla, counsel for OPs No.1&3.

                             Sh.D.P.S.Anand, counsel for OP No.4.                                  

 ORDER                                          

1. The instant complaint is filed by Rishabh Bhalla s/o Sh.Nirmal Kumar Bhahha (hereinafter referred to as the complainant) against Aggarwal Hospital and others (hereinafter referred to as the OP/s) under the Consumer Protection Act ( for short the Act).
2. The averments of the complainant are as follows:

That on 21.7.2016, complainant suddenly complained of pain in his abdomen. His father took him to the hospital of OP No.1 run by Dr.Sailesh Aggarwal, OP No.2, who after examining the complainant charged Rs.200/-as consultation fee. OP No.2 advised and referred the complainant to Bharat Ultrasound Centre, for ultrasound. Complainant conducted ultrasound on 21.7.2016 and paid Rs.900/- for this purpose. After examining the ultrasound sound report and the complainant once again,OP No.2 told that it was appendicitis and an operation had to be conducted for which an amount of Rs.22,000/- would be incurred. He also advised that Dr. Pancham Pal, OP No.3 is the best surgeon in Patiala and is an expert for conducting surgery for removing appendectomy and also he is visiting doctor to his hospital. Accordingly father of complainant admitted the complainant in the hospital of OP No.2 for treatment on 21.7.2016. Dr.Pancham Pal then immediately operated the complainant in the evening on 21.7.2016. After conducting operation OPs No.2&3 assured that operation was successful.

On 23.7.2016 morning, complainant got high fever, diarrhea and vomiting. Dr.Sailesh Aggarwal started giving medicines in addition to intravenous saline. This treatment conducted for five days but the complainant did not get any relief. On 29.7.2016, Dr.Sailesh Aggarwal, advised to get another ultrasound from Bharat Ultrasound, which was again conducted. After examining the ultrasound report, Dr.Sailesh Aggarwal, told that it is indicated that some fluid was deposited in pelvic region of complainant, which Dr.Pancham Pal, could not notice due to mistake. On 31.7.2016, Dr.Sailesh Aggarwal told that it appears to be some complication and advised for another operation of the complainant. In the evening of 31.7.2016, a major operation was performed on the complainant’s abdomen by Dr.Pancham Pal and it was told to the father of complainant by Dr.Sailesh Aggarwal that it was ‘Mekkal’s Diverticulum Gangrenous Pelvic Abscess’ which should have been checked and removed during the first operation itself on 21.7.2016.

Even after second operation, high fever of the complainant did not abate. Dr.Sailesh Aggarwal, asked the father of complainant to bring five injections named INVANZ MOLECULE of Merc Co. @ Rs.2400/- each but after giving above said injections there was no improvement in the condition of the complainant rather the complainant started having persistent cough and having breathing problem. Then Dr.Sailesh Aggarwal, asked father of the complainant to take the complainant to Dr.Dhillon’s lab, who will syringe out the fliuid from the upper part of the abdomen near the lungs of complainant. The complainant was brought to Dr.Dhillon who charged Rs.4000/- and gave a report that 250 MI of the fluid had been syringed out. Inspite of all, complainant did not show any improvement.

In the morning of 5.8.2016, father of the complainant took the complainant to PGI emergency and got admitted there, where complainant underwent several ultrasound tests, blood tests, X-rays, CT scan and other tests. That besides a number of operations conducted by the doctors of PGI, the concerned doctors of PGI also told that infection and serious condition of the complainant was caused due to negligent treatment and wrong operation by Dr.Pancham Pal. Complainant was discharged from PGI on 15.8.2016 where he remained under critical observation for 11 days and the treatment of PGI continued till November,2016

PGI doctors advised the complainant to consult chest specialist at Patiala for treatment of regular cough, which was caused due to infection and fluid in the lungs areas, caused by the operation at Aggarwal hospital, Patiala. Complainant then visited Chest Specialist at Patiala Dr.S.K.Gupta who gave him treatment for two months.The OPs i.e. Dr.Sailesh Aggarwal and Dr.Pancham pal cheated the innocent people and grab their money as well as they play with their lives under the cover of Nobel Profession.

That complainant incurred more than Rs.2 Lakh on the treatment due to negligence of both the doctors. He further incurred Rs.50,000/- for the treatmentfrom Dr.S.K.Gupta at Patiala of breathing problem. There is thus medical negligence on the part of both the doctors i.e. Dr.Sailesh Aggarwal and Dr.Pancham Pal at the time of conducting operation, which caused physical and mental pain and also harassment to the complainant. Consequently, prayer has been made for acceptance of the complaint.

3. Vide order dated 2.1.2018, complaint against OP No.2 has been dismissed as withdrawn. Upon notice to OPs No.1&3, they appeared through counsel and filed written statement. On 9.3.2018, ld. counsel for complainant filed an application for impleading Oriental Insurance Co. Ltd. as party to the complaint, which was allowed and it was impleaded as OP No.4. Amended complaint has also been filed. Upon notice to OP No.4, it appeared through counsel and filed written statement.
4. In the written statement filed by OP No.1, it raised certain preliminary objections.
5. On merits, it is admitted that on 21.7.2016, father of the complainant took complainant to Aggarwal Hospital and after examining him Dr.Sailesh Aggarwal charged Rs.200/- as consultation fee. It is submitted that OP No.1 Dr.Sailesh Aggarwal advised ultrasound to the complainant but he never referred him to Bharat Ultrasound Center. It is admitted that complainant came with ultrasound report and after examining, it was found that it was appendices and operation is to be conducted by a surgeon and Dr.Pancham Pal, OP No.3 being the visiting surgeon conducted the operation and only Rs.20,000/- were charged from the complainant.
6. It is further submitted that complainant reported on 23.7.2016 with loose motion for which he was given treatment in OPD or again on 25.7.2016, complainant reported in OPD with fever, loose motion and vomiting for which day care admission was done and I/V fluid was given and the patient was discharged in the evening. Lab tests done on 25.7.2016 and 26.7.2016 showed normal TLC, which supports the clinical judgment of loose motions secondary to antibiotic treatment. On 26.7.2016, patient had pain abdomen on opposite (left) of surgery alongwith fever for which patient was treated again on OPD basis only. On 27.7.2016, patient did not come for follow up. On 28.7.2016, patient came in the OPD with pain on left side for which USG abdomen was advised. On 29.7.2016, complainant came with USG report in the OPD and was admitted on 29.7.2016.
7. It is further submitted that on 31.7.2016, ‘Mekkal’s Diverticulum Gangrenous Pelvic Abscess’ was detected which completely separate from anatomical part than appendices for which the first surgery was performed, as such second surgery was done on 31.7.2016 and second surgery has no concern with the first surgery which was done on 21.7.2016. It is alleged that only three injections of Invanz were given to the patient which are easily available at the rate of Rs.1800/- per injection in the market. During second admission patient did not paid even a single penny, rather he left the hospital against the medical advice without clearing the dues.
8. It is submitted that patient was treated in the PGI for various other problems and nor for any problem due to surgery conducted in Aggarwal hospital and the doctors of PGI have not stated that there is any negligence while conducting surgery by the doctors at Aggarwal hospital. The complainant has leveled false allegations against the OP. Complainant is not entitled to any damage, as there is no negligence on the part of OP. The OP denied all other averments made in the complaint and prayed for dismissal of complaint.
9. In the written statement filed by OP No.3 it also raised certain preliminary objections.  On factual matrix and medical facts, it is submitted that it was a case of acute appendicitis and on operation it was found that appendix has perforated at its base near the caecum with localized peritonitis, so appendectomy was performed and thorough wash was done with normal saline. Surgery was appendectomy was performed diligently, prudently with utmost due care and caution. Patient reported on 23.7.2016 with loose motion. The antibiotic was stopped and treatment for diarrhea was started on OPD basis and there is no negligence, unfair trade practice or deficiency on the part of OP No.3. Further this OP has reiterated the facts as are taken by OP No.1, so the same are not repeated for the sake of brevity. After denying all other averments, OP No.3 prayed for dismissal of complaint.
10. In the written statement filed by OP No.4, it took various preliminary objections. It is submitted that OP No.4 has issued Professional Indemnity Doctors Policy in favour of Dr.Panchampal, OP No.3 MBBS/MS registered No.35963 (2005) and 2002 General Surgeon, for a period of 13.12.2015 to 12.12.2016 for a sum of Rs.10 Lakhs for any one accident and aggregate during the policy period Rs.20 Lakhs which shall not exceed the limit of indemnity for any one year as set out in the schedule. However, liability is denied as OP no.3 has not committed any negligence nor committed any deficiency in service in giving treatment to complainant by doing his duty with proper care, caution and ability being qualified surgeon.
11. On merits, it is stated that OP No.3 performed the operation of appendicitis of the complainant along with OP No.1 by following proper procedure and did not commit any deficiency while conducting the operation. This OP has also taken up the facts as are taken by OPs No.1&3, which are not need to be repeated for the sake of brevity. OP No.4 also prayed for dismissal of complaint. 
12. To prove his case, complainant through his counsel has tendered in evidence Ex.CA his affidavit along with documents, Exs.C1 to C90 and closed the evidence.
13. On the other hand ld. counsel for OPs No.1&3 has tendered in evidence Ex.OPA, affidavit of Dr.Sailesh Aggarwal, Prop. of Aggarwal hospital, Ex.OPB, affidavit of Dr.Panchampal Singh Bimbra alongwith document Ex.OP1 copy of insurance policy and closed evidence.
14. Ld. counsel for OP No.4 has tendered in evidence, Ex.OPC, affidavit of Sh.Mukesh Malhotra, Ex.OP2 copy of policy with conditions and closed evidence.
15. We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
16. The complainant has alleged that due to pain in his abdomen he reported in the hospital of OP No1 being run by Dr.Sailesh Aggarwal, OP No.2 for check up on 21.7.2016. He was advised for ultrasound and referred to Bharat Ultrasound Center, Chhoti Baradari, Patiala. Ultrasound report is Ex.C2, as per which complainant was diagnosed with acute appendicitis. Complainant got himself admitted in the hospital of OP No2, where he was operated by OP No.3 on 21.7.2016 itself, as per medical history, Ex.C1. However, complainant reported high fever, diarrhea and vomiting on 23.7.2016 and was admitted again for his treatment in the said hospital. The history of treatment upto 29.7.2016 is Ex.C1. However, fever did not subsidise. Complainant was again advised for ultrasound, which was conducted on 29.7.2016 as per Ex.C9 and the patient was diagnosed with Fluid Collection in Pelvic Region. Another surgery was carried out by OP No.3 on 31.7.2016. The complainant has averred that it was Mekkal’s Diverticulum Gangrenous Pelvic Abscess’ which should have been checked and removed during the first operation itself on 21.7.2016. However, there was no improvement in the condition of the complainant even after the 2^nd surgery and the complainant was referred to Dr.Dhillon for removal of fluid on 4.8.2016. Report of Dr.Dhillon is Ex.C19 as per which patient was diagnosed with Hepatosplenomegaly with bilateral pleural effusion, loculated abdominal collection and feature of resolving peritonitis. There was no improvement in the condition of the complainant and OP No.1 advised father of the complainant to shift the complainant to DMC or PGI for proper treatment.
17. Complainant reported to PGI on 5.8.2016, where various tests were conducted on the complainant. The complainant has alleged that number of operations were conducted by the doctors of PGI on the complainant and it was also conveyed that the serious condition of the complainant was due to negligent treatment by OP No.3 .The complainant was then finally discharged from PGI on 15.8.2016.The complainant has alleged that OPs No.1&3 had committed medical negligence on their part as they have lured the complainant for the surgery to be carried out through them. The complainant has also alleged that OPs No.1&3 had played with the body organs of the complainant and there is also deficiency in service on their part. It has also been alleged that OPs have failed to provide detail file of treatment of the complainant.
18. Ld. counsel for OPs No.1&3 has submitted that the complainant reported in the hospital of OP no.1 on 21.7.2016 due to abdominal pain and was advised for ultrasound. However, complainant was never asked to visit Bharat Ultrasound Center, Chhoti Baradari, Patiala for the same. It is admitted that after examination of ultrasound report, complainant was diagnosed with appendicitis and was operated by Dr.Pancham Pal, OP No.3, a visiting surgeon in the hospital being run by OP No.2.
19. It has also been admitted that patient reported on 23.7.2016 with the problem of loose motion, on 25.7.2016 with the problem of fever, loose motion and vomiting and was treated in OPD. It has also been submitted that the reports of various tests conducted during this period were normal. The complainant was finally admitted on 29.7.2016. It is denied that OPs were negligent as they did not notice any fluid as reported in 2^nd ultrasound report and have alleged that there is no negligence on the part of OPs No.1&3. It is denied that operation theatre was not sterilized as alleged by the complainant.
20. Ld. counsel for OP No.3  submitted  that OP No.3 is insured with Oriental Insurance Company Ltd. through its Professional Indemnity Policy No.272200/48/2016/18263, valid for the period 13.12.2015 to 12.12.2016, during which period surgery was performed on the complainant. Copy of insurance policy is Ex.OP2.An application was moved by OP No.3 for impleading the said insurance company as a party, which was allowed by this Forum vide order dated 9.4.2018.
21. Ld. counsel for OP No.3 further submitted that complainant was suffering from acute appendicitis and it was observed that appendix had perforated at its base near the CAECUM with localized peritonitis. There was no negligence in performing surgery upon the complainant. The complainant was also treated for fever, vomiting and loose motion when he reported for the same after surgery.
22. OP No.4 also admitted that OP No.3 was covered under Professional Indemnity Doctors policy and he is a qualified surgeon having MBBS/MS degree with registration No.35963 (2005) and has submitted that there was no negligence on the part of OPs in treating the complainant and has prayed for dismissal of complaint.
23. We have carefully gone through the documents and the arguments addressed by ld. counsels for the parties.
24. The allegation of the complainant that complete medical history was not provided by OPs No.1&3 is not justified as the complainant has himself produced the same, which is Ex.C1 giving the details of the treatment carried on 21.7.2016 to 29.7.2016.Further allegation of the complainant  that the operation theatre of the OPs was not sterilized has not been proved with any cogent and reliable evidence. The operation theatre is generally not accessible to the public and it is not a practice to call the attendants in operation theatre at the time of surgery as has been alleged in the complaint.
25. The complainant was operated for acute appendicitis which was detected as per report of ultrasound, Ex.C2. Complainant was duly attended by OPs No.1&3 whenever he reported for any problem after surgery and was given medicines. The complainant was detected with collection of fluid in pelvic region, as per 2^nd ultra sound report which is Ex.C9, for which complainant was again operated by OP No.3 for Congenital Meckel’s  Diverticulum.
26. Ld. counsel for OP No.3 has argued that the procedure carried out during 2^nd surgery was altogether different from the procedure carried out during first surgery and the treatment given to the complainant for Australia antigen (HBV) at PGI is not connected with the 1^st or 2^nd surgeries.
27. After going through the record of admission in PGI, Ex.C20, it has been observed that complainant was diagnosed with Post Appendectomy Abdominal Abscess. The complainant has also produced on record his medical history as reported to PGI, which is Ex.C78.
28. The said medical record of PGI does not indicate that a number of operations were performed on the complainant in PGI. In fact no surgery was performed on the complainant in PGI as per the said history. The complainant was diagnosed as having appendicitis and underwent appendectomy on 21.7.2016. Later he developed loose stools and high grade fever, for which USG done and found gangrenous meckel diverticulum and underwent diverticuletomy on 31.7.2016.Thereafter he developed high grade fever which was persistent for which USG done and found sus diaburafuratic collection. It has also been reported that complainant was diagnosed as having typhoid fever and HBV positive in 1998.
29. Nowhere in the report of PGI it has been observed that there was any negligence on the part of OPs No.1&3 while performing surgeries by the OPs.The complainant has also failed to prove his case with any cogent and reliable evidence and has not examined any expert to prove his case for negligence on the part of OPs No.1&3.
30. Ld. counsel for OPs No.1&3 has relied upon the judgment in the case of Sachhikant Tripathi Vs. Dr.Vikash Singh, Revision Petition No.1858 of 2018, decided on 11.11.2019, by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, wherein it has been held that –Allegation that doctor did not perform the surgery for removal of gall stone- complainant failed to establish negligence against OP-doctor – complainant’s case is neither supported by any expert opinion nor by any medical literature- No fault of imperfection in performing laparoscopic cholecystectomy-No merit-Petition dismissed.
31. Also in C.P.Sreekumar (Dr.), MS (Ortho) Vs.S.Ramanujam, reported in (2009)7 SCC 130, the Hon’ble Supreme Court has held that ‘onus of proving medical negligence lies on complainant. Mere averment in complaint is not evidence and it is to be proved by cogent evidence. The Hon’ble National Commission, in Mrs.Shantaben Muljibhai Patel and others Vs. Beach Candy Hospital and Research Centre and others, reported in 1(2005) CPJ 10(NC), came to the conclusion that when the hospital equipped with necessary equipment and doctors performed duties to best of their ability and with due care and caution, something if goes wrong, no negligence/deficiency in service is to be proved. In Subhashis Dhir and Another Vs. Smt.Sanjukta Sengupta and others, reported in 1999(3)CPR 13(NC), the Hon’ble National Commission opined that doctor should not be held guilty of giving wrong treatment without some medical evidence to that effect. In a decision reported in 2009(2) SCCLA 629 in Martin F D Souza Vs. Mohd Ishfaq, it was held that medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field and that standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. It was also held that in the said decision that Test in fixing negligence is the standard of the ordinary skilled  doctor exercising and professing to have that special skill, but a doctor need not possess the highest expert skill.’
32. In view of the aforesaid discussion, we are of the opinion that complainant has failed to prove any negligence on the part of OPs No.1&3. As such complaint is hereby dismissed with no order as to costs.       
33.           The instant complaint could not be disposed of within stipulated period due to Covid protocol and for want of Quorum from long time.
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                                              G.S.Nagi                           S.K.AGGARWAL

                                              Member                          President