Haryana

Panchkula

CC/414/2019

GURPREET KAUR. - Complainant(s)

Versus

ALCHEMIST HOSPITAL. - Opp.Party(s)

SHAURYA BHATIA.

30 Oct 2023

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                               

Consumer Complaint No	:	414 of 2019
Date of Institution		19.07.2019
Date of Decision	:	30.10.2023

 

 

Gurpreet Kaur wife of Shri Baljit Singh, resident of village Naggal, Tehsil Ambala Cantt, District Ambala.                                                                       

                                                                        .….Complainant

Versus  

1.     Alchemist Hospital, Sector-21, Panchkula-134112 through its      Managing Director.

2.     Dr.Neeraj Goyal, MBBS,MS.M.CH.Reg.No.35584-PMC, Department      of Urologist, Alchemist Hospital, Section21, Panchkula-       134112 (Haryana)

3.     The New India Assurance Company Ltd; registered office:301,   R.G.City Centre, LSC, Block B, Lawrence Road, New Delhi through     its Branch Manager(Insurance Company of Opposite Party No.1)

4.     The Oriental Insurance Company Ltd., SCO-48 & 49, Sector-17,         Chandigarh through its Branch Manager(Insurance Company of Opposite party no.2.)

                                                                      ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

                         Dr. Sushma Garg, Member.

                         Dr. Barhm Parkash Yadav, Member. 

 

For the Parties:   Sh. Shaurya Bhatia, Advocate for the complainant.

                        Sh. Gunjan Rishi,  Advocate for OPs No.1 & 2.

                        OP No.3 already ex-parte vide order dated 04.02.2020

                        Sh. Satpal Dhamija, Advocate for OP No.4.

                                               

                         

                       

ORDER

(Satpal, President)

1.Briefly stated, the facts, as alleged in the present complaint, are that the complainant had fever and stomach ache in the month of July 2017 for which she was taking the treatment from the Doctors at Ambala Cantt and the same was continuing for several days; the complainant visited the PGI Chandigarh on 27.07.2017, where she was diagnosed with the ailment of stone in both her kidneys and thereafter, she got herself admitted in PGI, Chandigarh on 28.07.2017, wherein D.J. stents in both her kidneys were implanted  on 30.07.2017 for smooth functioning of the same and she was discharged from the PGI Chandigarh on 02.08.2017 and she was asked to seek appointment  from OPD for her surgical operation for the removal of the stone from her kidneys but due to huge rush in PGI Chandigarh, her husband went to Alchemist Hospital, Panchkula on 07.08.2017, where he met Dr.Neeraj Goyal, who had given prescription on the basis of previous report and test report of the complainant. The complainant was admitted in the evening of 07.08.2017 in emergency ward of Alchemist Hospital, Panchkula i.e. OP No.1(hereinafter referred to as OP No.1) wherein she underwent her  surgical operation i.e. RT.PCNL (Percutaneous Nephrolithotomy) and Lt. URSL (Ureteroscopic Lithotripsy) conducted on 09.08.2017. It is stated that the complainant was not feeling comfortable after her surgical operation but the OPs No.1 & 2 had informed the complainant and her husband that stone from both the kidneys had been removed and she would become normal within few days and thereafter, she was discharged from the hospital on 11.08.2017. It is stated that Left upper Uretric Stone T Right Renal staghorn stone was removed as per discharge summary dated 11.08.2017. It is averred that the complainant as well as her husband were told by OP No.2 that stone from the kidneys of the complainant had been removed but she was not feeling well and thus, she went on 30.08.2017 to PGI Chandigarh for her checkup and on their advice, X-ray KUB and other tests were got done on 05.09.2017 from Mittal Ultrasound and Diagnose Centre, Ambala. The complainant also got done the other tests i.e. NCCT KUB from Charitable Medical Centre of Bharat Vikas Parishad, Sector-24, Chandigarh on 06.09.2017. Since the complainant was not feeling well and had some type of fever and pain in her stomach, she approached the PGI on 06.09.2017, where she was informed qua the retention of the stone measuring 9.1x3.5mm and for the removal of the same i.e. stone, she was advised to seek appointment from the OPD of the PGI Chandigarh. The complainant was discharged on 09.09.2017 from PGI, Chandigarh and thereafter, her husband met OP No.1 as well as OP No.2, who advised him for surgical operation of Right URSL and asked him to get prepared the estimate qua expenses to be incurred for surgical operation of RT. URSL. It is stated that the complainant got her surgical operation for the removal of stone measuring 9.9mm x 5mm and D.G. stent from her kidney on 11.09.2017 from Neelam Hospital Superspecialty Health Care opposite University, Chandigarh-Rajpura. The complainant has incurred an expenses amounting to Rs.28,437/- qua the surgical operation. It is averred that the complainant’s husband is a poor person, who is working only as a labour in Science Factory i.e. M/s Bharat Instruments, which is manufacturing Microscopes & is getting only Rs. 8,500/- per month. It is stated that the complainant has suffered physically and mentally only because of sheer negligence on the part of Ops No.1 & 2. Due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.

2.Upon notice, the OPs No.1 & 2 appeared through counsel and filed the written statement, making preliminary submissions therein with the averments that as per the history given by complainant and her husband, patient Mrs.Gurpreet Kaur was a recurrent stone former. She already had undergone three surgeries in the past before the current episode. She was diagnosed at PGI, Chandigarh on 28.07.2017 to have bilateral  obstructing  kidney stones(left  side upper ureteric stone  and right side large staghorn kidney stone) with kindey failure (Se Creatinine of 5.2 mg%). The Doctors at PGI had operated upon her on 30.07.2017 and stents in both the kidneys were placed to relieve the obstruction, after which she was discharged from PGI, Chandigarh on 02.08.2017. It is submitted that the complainant was admitted in Alchemist Hospital, Panchkula i.e. OP No.1 on 07.08.2017, wherein she was  diagnosed to be suffering from bilateral obstructing kidney stones (left side upper ureteric stone and right side large staghorn kidney stone, >30mm in size) associated with raised TLC count(s/o infection) and kidney dysfunction with raised serum Creatinine (above normal reference range). Her treatment was started as per standard treatment protocols. After normalization of her TLC count, she was planned for surgery. After detailed explanation and counseling about the surgical procedure, its associated risks and possible complications, patient herself and her husband had signed a written and informed consent. They were clearly explained about possibilities of need of staged procedure in view of large stone bulk, incomplete stone clearance or residual stone fragments after surgery that may require extra surgical procedures or in future. It is stated that, after obtaining a valid consent, she (the complainant) underwent left ureteroscopy stone surgery(URSL) and right percutaneous stone surgery(PCNL) along with bilateral Double-J stents  placement  on 09.08.2017. The postoperative recovery was smooth and uneventful. She was discharged on evening of 11.08.2017 and advised to follow up in OPD on 17.08.2017. It is stated that the Ops never declared her(the complainant) stone free and she(the complainant) was well informed about indwelling bilateral Double-J stents. The purpose of keeping Double-J stent after surgery was to facilitate the passage of residual stone fragments(if any) and to avoid  the obstruction of kidney due such residual stone fragments.  It is submitted that as per X-ray KCB of the complainant on 10.08.2017, no residual stone was detected. It is submitted that a surgical operation of the complainant was conducted by OP No.2 qua the removal of left upper ureteric stone and right renal staghorn stones. It is admitted that the complainant’s husband had visited the OP No.1 on 09.09.2017 in OPD but the complainant was not present. However, the complainant’s husband was explained that there was a small residual stone fragment on right side of the complainant’s kidney and he was clearly explained about the usual need of multiple or adjuvant procedures in case of staghorn calculi to render the complainant stone free. It is denied that there was any lapse and deficiency on the part of Ops and thus, the complaint is liable to be dismissed being frivolous, baseless and meritless.

3.Notice was issued to the OP No.3 through registered post, which was not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OP No.3; hence, it was deemed to be served and thus, due to non appearance of OP No.3, it was proceeded ex-parte by this Commission vide its order dated 04.02.2020.

4.Upon notice, the OP No.4 appeared through counsel and filed the written statement raising preliminary submissions qua the complaint is not maintainable as no cause of action has accrued in favour of the complainant and she has not come with clean hands. It is submitted that the OP No.2 is insured with OP No.4 through its Professional Indemnity Policy No. 231494/48/ 2017/371 from 21.03.2017 to 20.03.2018. It is submitted that the OP No.2 is not liable for any amount of compensation as claimed in the present complaint because no specific negligence has been attributed  against the insured i.e. OP No.2 in the absence of any specific allegation with regard to negligence on the part OP No.2, the complaint is liable to be dismissed. It is submitted that the present complaint is liable to be dismissed against the OP No.4 in view of terms and conditions of the policy. It is submitted that the complainant has totally failed to explain “as to how the Doctor was negligent and at which/what stage of treatment, the Doctor was negligent?, what the OP No.4 was supposed to do”, What were  other lines  of treatment etc. It is submitted that the differences  of opinion  in adoption of a particular  line of treatment or medicine to be used under a particular set of circumstances and prevailing  conditions and also any error of  judgment  either  in diagnosis  or treatment, if any, cannot be termed as negligence on the part of OP No.2/treating doctor. The OP No.2 being Doctor had not permitted himself to do anything that would weaken the physical and mental resistance of a human being, except from strictly following therapeutic or prophylactic indications, hence the present complaint is liable to be dismissed. It is further submitted that the OP No.2 has treated the complainant in good faith using his reasonable skill and care.  

                On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.4 and as such, the complaint of the complainant is liable to be dismissed.

5.The learned counsel for the complainant has tendered the affidavits as Annexure C-A & C-B along with documents Annexure C-1 to C-15 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OPs No.1 & 2 has tendered affidavit as Annexure R-1/A along with documents as Annexure R-1/1 to R-1/2 and closed the evidence.  The learned counsel for the OP No.4 has tendered affidavit as Annexure R-4/A along with documents as Annexure R-4/1 and closed the evidence.

                During the arguments, the learned counsel for the OPs No.1 & 2 has placed, on record, the copy of insurance policy no. 93000036160200000431 issued by The New India Assurance Co. Ltd. (the OP No.3), which is taken on record as Mark ‘A’ for the adjudication of the present complaint in a proper and fair manner. 

6. We have heard the learned counsels for the complainant, OPs No.1 & 2 & OP No.4, and gone through the entire record available on file including the written arguments filed by the complainant as well as OPs No.1 & 2, minutely and carefully.

7.The learned counsel for the complainant, during arguments, reiterating the averments as made in the complaint as also in the affidavit(Annexure C-A) contended that the complainant and her husband were conveyed by OP No.2, on 09.08.2017, after the surgical operation of the complainant, that both her kidneys had been cleared by removing stone. It is contended that the kidneys of the complainant were not cleared as stated by OP No.2 after the surgical operation of the complainant on 09.08.2017 as the retention of a stone measuring 9mmx5mm was detected, and for which the complainant had to undergo a second surgical operation on 11.09.2017 in the Neelam hospital qua the removal of residual stone and thus, it is contended that the OP No.2 was negligent and there was lack of proper care and precautions on his part, while conducting surgical operation on 09.08.2017. The learned counsel argued that it is a fit case where the principle of Res-ipsa-loquitor is fully applicable and in this regard, reliance was placed upon the case law laid by the Hon’ble State Commission, Punjab in case title as Yashmeen Kaur Vs. Moga Medicity (Multispecialty Hospital) in C.C. No.62 of 2014 decided on 03.5.2017 wherein para no.25, it was observed as under:-

        The maxim ‘res ipsa loquitur’ is used to describe the proof of facts which are sufficient to support an inference that the opposite party was negligent and thereby to establish a prima facie case against it. It is not a presumption of law, but a permissible inference, which Commission/Court may draw, if upon all the facts, it appears to be justified. It is invoked in the circumstances, when the known facts relating to negligence consists of the occurrence itself or where occurrence may be of such a nature as to warrant an inference of negligence. The maxim alters neither the incidence of onus nor the rules of pleading.

                The learned counsel has, further, placed reliance upon the case law i.e. J.D.Bagree Hospital & others Vs. Vandana Goyal in F.A.No.58 of 2019 decided on 05.09.2014(NCDRC) to show that there was medical negligence on the part of OPs No.1 & 2. Concluding the arguments, the learned counsel has prayed for acceptance of the complaint by granting the relief as claim for in the complaint.

8.On the other hand, the learned counsel on behalf of the Ops No.1 & 2 refuted the allegations as leveled by the complainant attributing medical negligence on the part of OPs No.1 & 2, during the surgical operation of the complainant, on 09.08.2017, and vehemently contended that the complainant was operated on 09.08.2017 qua the removal of stones i.e. Staghorn Calculus from her kidneys by following well established medical practice and procedure making no deviation from the same. It is contended that the removal of staghorn calculus was very a complicated task and the OP No.2, by exercising due care and precautions, performed this surgical operation on 09.08.2017. It is vehemently contended that neither the complainant nor her husband were told qua the clearance of kidneys from the stone as alleged. It is further contended that the OPs had never declared the complainant’s stone free and it was clearly explained to her about the possibility of the need for a stage procedure, in view of the large stone bulk, incomplete stone clearance, or residual stone fragments after the surgery that may require extra surgical procedures or relook procedures in the future. It is argued that there was no lapse or negligence on the part of the OPs No.1 & 2 while conducting the surgical operation of the complainant on 09.08.2017 and thus, the complaint is liable to be dismissed being baseless, frivolous and meritless.

9.The aforesaid contentions raised by the learned counsel for the Ops No.1 & 2 denying any lapses and deficiencies on their part are not acceptable. As per version of OPs No.1 & 2, the complainant was never declared stone free as alleged by the complainant and the complainant as well as her husband were never conveyed about the clearance of stones from the kidneys. However, the aforesaid version is found at variance as against the remarks recorded in the “operation notes” by OP No.2, on 09.08.2017 after the surgical operation of the complainant, where in an unambiguous terms, the complainant was declared as complete clearance from the stone in her kidneys. In the said “operation notes” prepared by the OP No.2, on 09.08.2017, we find specific mention of the fact that stone was fragmented with laser with the further remarks as “complete clearance” at two places in the said notes. Therefore, the version of the OPs No.1 & 2 that the complainant was never declared stone free stands negated.

10.The OP No.3 has preferred not to contest the present complaint by remaining absent despite services of notice and accordingly, it was proceeded ex-parte vide order dated 04.02.2020 respectively and thus, the assertions made by the complainant go unrebutted and uncontroverted.

11.The learned counsel on behalf of OP no.4 reiterated the averments as made in the written statement and contended that no liability can be imposed on OP No.4 as there was no medical negligence on the part of OPs No.1 & 2 and thus, prayed for dismissal of the complaint qua OP No.4.       

12.Admittedly, the second surgical operation of the complainant on 11.09.2017 qua removal of stone measuring 9x5mm was necessitated only due to the non clearance of the stone from the kidneys of the complainant by OP No.2, during her operation, on 09.08.2017. Pertinently, the second operation was necessitated within a period of one month, which clearly overrule the possibility of fresh formation of stone after the operation on 09.08.2017. Even otherwise, it is not the case of OPs No.1 & 2 that the complainant had undergone the second surgical operation on 11.09.2017 due to the fresh formation of stone. Pertinently, the residual stone causing pain and discomfort to the complainant was of the size of 9mmx5mm, which cannot be said that the same was not detectable on 09.08.2017.       

13.Moreover, the OPs no.1 & 2 have been found lacking in not giving proper services as the complainant’s husband was asked as per Annexure C-8, to get the estimate prepared qua the expenses to be incurred on account of second surgical operation for the removal of residual stone. Infact, the OPs no.1 & 2 ought to have extend the full cooperation and support to the complainant, when her husband had approached the OP No.2 after the detection of the residual stone measuring 9mmx5mm.

14.In view of the discussion made above, we may, safely, conclude  with reasonable degree of certainty that that the OPs No.1 & 2 had failed to exercise due care and skill while performing surgical operation in question and thus, the Ops No.1 & 2 are liable, jointly and severally, to compensate the complainant for their negligent and deficient services. 

15.Since the OPs No.1 & 2 were insured with OPs no.3 & 4 i.e. The New India Assurance Co. Ltd. and The Oriental Insurance Co. Ltd. respectively vide insurance policy nos.9300003610200000431 & 231494/48/2017/371; so the OPs No.3 & 4 are also liable, jointly and severally,  to compensate the complainant.

16.The amount of expenses incurred by the complainant to the tune of Rs.1,82,305/- is not in dispute. The detail of Bills as per record is given as under:-

Sr. No.	Date	Amount(Rs.)	Name of Hospital	Annexure
1	11.09.2017	300/-	Neelam Hospital	C-9
2	12.09.2017	5,387/-	-do-	C-12
3	12.09.2017	28,437/-	-do-	C-14
4	11.08.2017	1,48,181/-	Alchemist Hospital	C-15
5	Total amount	1,82,305/-

 

17.As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs No.1 to 4:-

1. To pay a sum of Rs.1,82,305/- to the complainant, along with interest @ 9% per annum(simple interest) w.e.f. 11.08.2017 i.e. the date when the payment was made to the Alchemist Hospital(OP No.1) till its realization.
2. To pay a sum of Rs.25,000/- to the complainant  on account of mental agony and physical harassment suffered by her.
3. To pay a sum of Rs.75,00/- to the complainant on account of litigation charges.

 

 18.  The OPs No.1 to 4 shall comply with the directions/ order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 to 4. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. 

Announced on:30.10.2023

 

 

 

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                        Member                         President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President

 

 

CC.414 of 2019

Present:             Sh.Shaurya Bhatia, Advocate for the complainant.

                        Sh. Gunjan Rishi,  Advocate for OPs No.1 & 2.

                        OP No.3 already ex-parte vide order dated 04.02.2020

                        Sh. Satpal Dhamija, Advocate for OP No.4.

 

                        Arguments heard. Now, the case is adjourned to 30.10.2023 for orders.

 

Dt.16.10.2023

 

 

        Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal

                       Member                            Member                         President

 

Present:             Sh. Shaurya Bhatia, Advocate for the complainant.

                        Sh. Gunjan Rishi, Advocate for OPs No.1 & 2.

                        OP No.3 already ex-parte vide order dated 04.02.2020

                        Sh. Satpal Dhamija, Advocate for OP No.4.

                                         

 

                                Vide a separate order of even date, the present complaint is hereby partly allowed against OPs No.1 to 4 with costs.

                         A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.

Dt. 30.10.2023

 

 

       Dr.Barhm Parkash Yadav       Dr.Sushma Garg             Satpal

                       Member                            Member                         President