DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016.

  Case No. 656/2007

Sh. Adhir Ranjan Nandi

S/o Late Sh.  Ramani Mohan Nandi

R/o K-1/76, Chittaranjan Park,

New Delhi-110019                                                       -Complainant      Vs

All India Institute of Medical Sciences

Through its Director

Aurobindo Marg, New Delhi                                    -Opposite Party

                                  Date of Institution: 11.06.2007      Date of Order : 14.03.2018

Coram:

N.K. Goel, President

Naina Bakshi, Member

O R D E R

Initially, the complaint was filed before the State Commission, Delhi where it was registered as C.C. No.07/39. The Complainant sought compensation of Rs.22 lacs for the handicap caused during the post- operative period and Rs.1 lac towards the medical aid and medicines. However, vide order dated 21.03.07 the State Commission,  Delhi  held that even if the allegations are assumed to be correct, the amount of compensation  for the purposes of pecuniary jurisdiction would not cross Rs.20 lacs.  Accordingly, the complaint was transferred to this Forum.  This is how the complaint is before us and registered as C.C. 656/07.

 The case of the complainant, in nutshell, is that the complainant was a healthy person with no medical records till 06.08.02 when he first visited the OPD of OP for cure and treatment of severe pain in right hypochondrium and colicky for the last 2 days radiating to right shoulder; that earlier he had no history of nausea, vomiting, fever, jaundice or any other complaints to his physique and body. As per the averments made in the complaint, the OP carried out the examination/investigations of the complainant as detailed in paras 3 & 4 of the complaint and he was diagnosed as a case of gallstone disease. The OP having completed the examinations, diagnosis and admitted him on 21.08.02 for operation to be done on 22.08.02; that the operative procedure to be adopted was to open Cholecystectomy with umbilical hernia under GA and the complainant had opted and consulted only for open Surgery process and not Lapehole procedure since the size of stone was more than 21 mm. Para 7 of the complaint states that the following operative findings of the OP were recorded:-

“Operative Findings: Moderate adhesions in Callot’s triangle, Bile and stone spillage. Open cholecystectomy findings confirmed, umbilical hernia repaired with Mano’s repair.”

It is further stated that the OP carried out the operation on 22.08.02 upon the complainant by adopting operative procedure of lapehole instead of open surgery and the complainant had never consented for his operation through lapehole procedure which does not find any recognition from the Govt. of India or was not otherwise advised by anyone keeping in view the size of the stone. According to the complainant,  OP committed faults and defaults in carrying out the operation for the treatment of hernia and  because of the OP’s negligence and deliberations the Complainant suffered recurrent paraumbilical hernia and besides that developed the problems of  prostate, GERD, functional of bowel and arthritis.  The complainant was discharged on 25.08.02 while his wounds were not properly taken care of and its position was not mentioned in IPD records or OPD records quite intentionally and malafidely in order to conceal the negligence and lapse on the part of OP. It is stated that the OPD records dated 09.09.02 goes to show cleaning and dressing of the wounds but it does not mention about stitch removal after the operation which added pains to the complainant in his various limbs in the body including on the lower limbs both right and left side and because of the carelessness and negligence of the OP wounds were infected and got septic to which no attention was paid by the OP. It is further stated that even OPD records dated 16.09.02 mentions about the wounds dressing and cleaning to be continued for next two weeks which means that the wounds sepsis and wounds dehiscence was very much there but the same finds no mention in the OPD records which was avoided by the OP out of its malafide and deliberation; that the records of the OP finds no mention in its IPD or OPD records as to how the wounds were ultimately healed up or that the pus, C & S tests, artibiotic C/o wound resuturing; that because of the negligence of the OP the complainant has developed post operative sepsis and wound complications and recurrence of already operated hernia; Had the OP given better care of wound, the miseries would have been minimized.  It is inter-ala stated as under:-

 “17. That the complainant still continues to suffer because of the wrong operative procedures and mishandled the disease of the complainant. It became a case of Recurrent Umbilical Hernia and on 30.11.2004 he was advised that a Mesh Hemioplasty would be performed upon the complainant on 09.12.2004, which was performed on 16.12.2004, which further deteriorated the health condition of the complainant and prescribed medicines which cost heavily on the complainant.

18.    That on 06.12.2004, the complainant was examined for reoperative Anesthesia by Anaesthesis Doctor and was admitted in Private Ward.

                   On 09.12.2004, the complainant was examined by Prof. Ramamurthy of Cardiology Department with necessary advice for the Hospital for the complainant who was operated on 16.12.2004 and discharged on 20.12.2004.

19.    That on 09.08.2005, the complainant went to the O.P. vide Registration Card No.2276/05 (Survey-1) for follow-up case of Hemeoplasty for Umblical Hernia.

20.    That on 05.10.2005, the complainant attended GE clinic OPD vide Registration No.14563/05 under Prof. S.K. Acharya for mild SAIO with Bacterial over growth Intestinal Diarrhea, Gastroesophageal reflux Disease (GERD) and advised treatment. The complainant went to the  GE Clinic of the O.P. but had to face disappointment upon the disclosure by the Doctors of O.P. that there was no treatment for the complainant as the disease was incurable and the complainant will have to bear the burden of having become permanent disable since the operation upon him dated 22.08.2002 & 16.12.2004 were not properly found.

21.    That again on 11.03.2006, the complainant attended GE Clinic of the O.P. and the Pool Officer Gastroenterology advised 6 months treatment and accordingly on 16.09.2006, the complainant again attended GE Clinic of the O.P. and Pool Officer advised treatment for 4-5 Months, which treatment, the complainant has been asking but all in vain and finds no improvements despite heavy costs.

22.    That the complainant discussed the issue of permanent handicapness with various Medical Centres and now it has been finally decided that the complainant would continue to remain and suffer the existing Handicapness by way of movements, sitting standing & waking.”

Hence, this complaint for directing the OP to pay to the Complainant Rs.22 lacs for compensation for the handicapness occurred due to wrong operative procedure and treatment given by the OP and Rs.1 lac towards expenses on continuous medical treatment, aids and medicines alongwith interest @ 2% per month from the date of the complaint till realization.

OP has contested the complaint and has filed a reply wherein it is pleaded that the complainant is not  a consumer vis- a-vis the OP as no charges whatsoever have either been claimed or said to have been paid for the treatment at AIIMS  and further that the services alleged to have been provided at the OP hospital did not amount to services as defined under the Consumer Protection Act; that since  no amount is taken by way of service charges and the entire services are free of costs to all patients as such  OP would be outside the scope of the Consumer Protection Act.  It is further submitted that the complainant  was treated at the OP hospital following the accepted and acknowledged procedure by the competent doctors and the complainant has failed to make any averment as to what  ought to had been done and what ought not to have been done by the OP. In paras 2-4 of the reply on merits, it is inter-alia stated as under:

“… It is submitted that other then the stones in gall bladder, the complainant had an umbilical Hernia and was suffering from serious surgical conditions. It is further submitted that T.LC. (white blood cell count) was 14400 and was suggestive of lurking infection. The lever functions – two are high with enzymes O.T./P.T. being 30/88 units. The complainant had pain right hypocondrium, colicky severe and continuous for two days radiating to right shoulder 20 days back. The patient had acute cholecystitis and several other medical conditions.”

Para 5 of the reply on merits inter-alia reads as under.

          “…The patient was admitted on 21-08-2002 in private room no.510 with C.R. No.698176 with  the diagnosis of gall bladder stones for surgery. It is further relevant to  mention here that the complainant was the husband of Ms. Manju Nandi who was employed in AIIMS as Chief Nursing officer. The said Ms. Manju Nandi, C.N.O. was accompanied him.  The complainant was operated on 22-08-2002 and his wife Manju Nandi C.N.O. was in the premises of operation theater with several of her senior colleagues.”

It is denied that operative procedure to be adopted was to open cholecystectomy with umbilical hernia under G.A. or that the complainant had opted and consented only for open surgery and not for lapehole procedure since the size of the stone was more than 21 m.m.  It is stated that prior to operation due informed consent had been obtained from the patient and his wife C.N.O. Manju Nandi, for operation under general anaesthesia and the consent was given by the complainant and his wife for lapehole/open cholecystectomy  i.e. removal of gall bladder. It is stated that as per the condition of the patient the correct operative steps were adopted in his case.  In para 8 of reply on merits it is inter-alia stated as under:

“…It is submitted that the surgical procedure of laparoscopic cholecystectomy is the standard and well recognized procedure of removal of gall bladder when stones are present. The said procedure was started in case of complainant, but as adhesions were present in the area of operative field (Calots Triangles), the procedure was converted to standard open cholecystectomy. It is submitted that the procedure adopted was the standard and correct procedure in the condition of the complainant. It was  found to be a case of empyema of gall bladder ( the condition of infection of gall bladder with puss inside it).  It is submitted that as per the requirement, alongwith the cholecystectomy, mayo’s repair of umbilical hernia was also performed. It is submitted that as such the doctors at AIIMS performed the surgery as per the requirement and condition of patient through accepted and well recognized procedure. It is categorically denied that the complainant had not consented for the procedure of lapehole. It is submitted that the complainant had given consent for lapehole/open cholecystectomy.”  

 It is denied that the OP committed any fault or default in carrying out the operation or that there was any negligence or deliberation on the part of OP or that  because of any negligence on the part of OP the complainant suffered recurrent para umbilical hernia or developed  the problem of prostate, GERD, functional bowel or arthritis.  It is submitted that the hernia  irrespective of the side of occurrence are known to recurrence and recurrence of the hernia has no concern with the operation performed upon the complainant  by the doctors at OP hospital.  It is stated that development of fresh complaints related to prostate, GERD, functional bowel and arthritis are related to ageing or growing old and has no concern with the surgery performed upon the complainant at the OP hospital.  It is stated that the Complainant had an uneventful recovery and was discharged on 25.08.02 only after giving him adequate time for recovery and even at that time the complainant was accompanied with his wife and he was advised for four weeks’ rest for convalescence and was also advised to come up for follow up in surgery OPD. It is submitted that the OPD cards are withheld by the Complainant which shows his malafide intention. It is stated that the complainant was admitted on 06.12.04 i.e. almost two years after first operation and was operated on 06.12.04 and the mesh hernioplasty/prolene mesh repair of umbilical hernia was performed on him and was discharged after an unevent recovery from the operation.  It is denied that the surgery deteriorated his health condition. Other averments made in the complaint have been denied. Denying any medical negligence on its part the OP has prayed for dismissal of the complaint.

In the rejoinder, the complainant has inter-alia stated that the complainant and his wife Ms. Manju Nandi were not explained about the gravity of disease and extent of operational and surgical intervention and their free consent was not sought by the OP. It is submitted that whatsoever OPD cards are with  the complainant they have been submitted before this Forum.  The Complainant has also taken additional pleas in the rejoinder wherein it is inter-alia submitted that the informed consent was undertaken from the patient both for Lap Chole/ Open Surgery as it is the standard practice but no consent for surgery on Umbilical Hernia alongwith Gall Bladder surgery was sought from the complainant or his relatives nor they were made to understand whole disease and procedure.

Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Dr. D. K. Sharma, MS has been filed  in evidence  on behalf of the OP.

 Written arguments have been filed on behalf of the parties.

No one has appeared on behalf of the parties to advance oral arguments despite opportunity given in his behalf.

Our Predecessors referred the case for medical expert opinion to the VMMC & Safdarjang Hospital, New Delhi. The said hospital submitted the medical opinion report in respect of the complainant vide letter No. 2-19/2011-MR dated 28.02.12. We mark the report as Mark C1 for the purposes of proper identification. Vide the said report, the medical board reached to the following conclusion:-

“Conclusion:

Conversion of Laparoscopic Cholecystectomy to an open procedure is an accepted norm in case of any difficulty faced by the surgeon. Recurrence of umbilical hernia after Mayo’s Repair is a known entity.”

The Complainant has filed objections against the medical opinion report.  However, the objections do not disclose any sufficient reason as to why the medical opinion report be not accepted or be discarded. Therefore, we do not find any merit in the objections.

 We have very carefully gone through the record. Admitted facts which have emerged on the file from the averments made in the rejoinder is that the complainant and his wife Ms. Manju Nandi who was working as Chief Nursing Officer in the OP hospital at the relevant time had  given their informed consent both for Lap Chole/ Open Surgery as it is the standard practice though according to the complainant no consent for surgery on Umbilical Hernia alongwith Gall Bladder surgery was sought from the complainant or his relatives nor they were made to understand the whole disease and procedure. However, to our dismay the complainant has not filed even a single paper or lead oral evidence to prove this fact.

Secondly, admittedly the wife of the complainant had been working as Chief Nursing Officer in the OP hospital at the relevant time. Chief Nursing Officer is not an ordinary post. She must have been promoted as a Chief Nursing Officer after rendering many years of service with the OP or any other hospital as a Nurse.  Her post is a quite specialized post. In other words, she must have been a diploma/degree holder in nursing course. While working as Chief Nursing Officer with the OP she must have gained or acquired more than sufficient knowledge about the procedure to be adopted in various kinds of surgeries including the surgery in question and also about the informed consent. Therefore, keeping this fact in view we are not inclined to believe that neither the complainant nor his relatives were made to understand the whole disease and procedure or that no consent for surgery on umbilical hernia alongwith gall bladder surgery was sough from the complainant or his relative. Even otherwise, the failure of every procedure or medical operation does not tantamount to medical negligence on the part of the treating doctors. A heavy burden is cast upon the patient to prove that while giving medical treatment to him/her for performing the medical surgery the doctors had acted in a demonstrably negligent manner. When the doctors perform their duty in accordance with the accepted procedure and even then the procedure/operation fails they cannot eventually be held responsible for medical negligence in all cases. 

In the present case, keeping in view of all the facts and circumstances of the case discussed hereinabove we are of unambiguous and unilateral opinion that the complainant has failed to prove that while performing the surgery in question on him the doctors of OP hospital committed any medical negligence.

          In view of the above discussion, we dismiss the complaint leaving the parties to bear their own costs.

           Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on 14.03.2018