Haryana

StateCommission

A/912/2014

Dr.Sudhir Kapoor - Complainant(s)

Versus

Amar Singh - Opp.Party(s)

14 Dec 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                First appeal No.912 of 2014

Date of the Institution: 13.10.2014

Date of Decision: 14.12.2016

 

Dr.Sudhir Kapoor, Director/M.S.General Surgery, Kapoor Hospital, Near Polytechnic College, Ambala City, presently at Kapoor Hospital, near Police Line Chowk, Ambala City.

…..Appellant

Versus

1.      Amar Singh S/o Sh. Ram Kishan, aged about 56 years, R/o village Kanwla,tehsil & District Ambala.

2.      United India Insurance Company Ltd., 54, Janpath, Connaught place, New Delhi.

…..Respondent

 

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs. Urvashi Agnihotri, Member

 

Present:-    Mr.D.K.Singhal, Advocate for the appellant.

                   Mr.Sandeep Lather, Advocate counsel for the respondent No.1.

                   Mr.P.S.Bedi, Advocate for the respondent No.2.

 

 

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

 

It was alleged by the complainant that he was having stone in gall bladder.  Opposite party (O.P.) was running clinic under the name and style of “Kapoor Hospital”, though he was serving as medical officer at General Hospital Ambala City under Health Department.  On 13.08.2008 he was admitted by O.P. in his hospital for open Cholecsytectomy and got deposited Rs.10,000/- in advance. He was not careful while conducting operation and cut some wrong vein, due to which his condition deteriorated on the operation table. Despite that O.P. kept him in operation theatre for five hours and called some doctors from other places, but, nothing could be done.  O.P. took him for endoscopy examination and also charged for the same.  He did not tell his wife and other family members about his condition ultimately when the matter went out of his hands he advised to take him to Shivalik Hospital, Mohali.  He was taken there on 15.08.2008 and various tests were conducted and it was diagnosed as  post Cholecystectomy bile duct injury with billiary peritonitis. It was observed by doctor at Shivalik Hospital, Mohali that he was toxic, febrile, tachycardia +nt, Icterus +nt, P/A Distended, Tenderness +nt all over, B/S-nt.  O.P. referred him to Shivalik Hospital instead of PGI, Chandigarh because Dr.Vikas Goyal and Dr. Deepak Mittal were known to him.  On 16.08.2008 he was operated upon at Shivalik Hospital and ultimately discharged on 03.09.2008.  Rs.Three lacs were spent by him on treatment at Shivalik Hospital.  Even after discharge from that hospital he was feeling weekness and did not recover properly. He was unable to look after his family due to wrong treatment.  It came to his knowledge that so many enquiries are already pending against him qua deficiency in service. Legal notice was sent to O.P. to pay compensation, but, to no result. Hence the complaint.

2.      O.P. filed reply controverting his averments and allege that the allegations were not supported by any expert evidence which was required as per law.  He was qualified surgeon and complainant accepted his services without any protest. As per ultrasound there were multiple gall stones with dilated gall bladder and that is why open Cholecystectomy was done. When abdomen was opened it was found that gall bladder was badly adherent with gut loops and calots (triangle) were frozen. It was also containing pus. Mirizzi syndrome was present. While separating gall bladder from common bile duct, it was found that CND & Gall bladder got opened up and stone and pus started coming from gall bladder.  It was not possible to close CBD at that time.  Therefore abdomen was closed in layers over the sub-hepatic drain.  As per  standard guidelines in literature, the patient was sent for hepaticojejunostomy at harmony health care Centre, Mohali after discussion with Dr. Vikas and Dr. Deepak of that hospital. He also assisted in second surgery of the patient free of costs.  Nothing was charged from him at his hospital and was sent to Harmony Health Care Centre in Ambulance free of cost.  He was charged nominal amount at Harmony Health Care Centre. Visualize anatomy of biliary tract, endoscopy of the patient was got done free of cost.  There was no negligence on his part and he followed the proper procedure laid down for this surgery.  As per literature stone in  the Ampulla of the gall bladder (Hartmann’s Pouch) could encroach upon and erode the common bile duct, known as mirizzi’s syndrome.  If common duct segment was partially or completely destroyed, reconstructive procedure  was mandated.  It was a known risk in such like cases. So it could not be alleged that there was any negligence on his part. Complainant did not pay any amount  as alleged by him.  Other averments were also denied and requested to dismiss the complaint.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Ambala (In short “District forum”) allowed complaint vide impugned order dated  01.09.2014 and directed as under:-

“xxxxwe are of the view that a lump-sum compensation of Rs.3 lacs i.e. Rs.1,50,000/- on account of harassment (Physically & Mentally) ill health and damages etc. and Rs.1,50,000/- on account of medical expenses etc. incurred by the complainant at Shivalik/Harmony Hospital, Mohali, P.G.I. Chandigarh and also at Dr. Kapoor Hospital or elsewhere etc. along with simple interest @ 9% per annum payable from the date of institution of complaint till the date of its decision would be a just and proper award. However, it is made clear that the liability to indemnify the award in question to the extent of insured amount shall be of the United India Insurance Company Ltd. (OP No.2) since Dr. Sudhir Kapoor of OP No.1 is professionally insured with OP No.2 during the aforesaid crucial period.”

4.      Feeling aggrieved therefrom, opposite party No.1 has preferred this appeal.

5.      Arguments heard. File perused.

6.      Learned counsel for appellant-O.P.No.1 vehemently argued that  averments of complainant about concealment of the report of endoscopy or condition of patient is altogether wrong because it was with the complainant since very beginning and that is why he produced the same in evidence as Ex.C-4.  Reference of this report is also given in legal notice Ex.C-5 sent by Advocate of the complainant to Dr.Sudhir Kapoor.  This fact falsifies his statement given before District forum that report of endoscopy was not with him.  This problem is known complication as opined by Hon’ble National Commission expressed in Original petition No.114 of 1999 titled as Smt. Tilat Chaudhry Vs. All India Institute of Medical Sciences decided on 09.11.2012. As treatment about CBD injury was not available at the hospital that is why he was referred to Shivalik Hospital. He followed proper procedure and there was no fault on his part. Learned District forum wrongly granted compensation as mentioned above, so impugned order be set aside.

7.      This argument is devoid of any force. As per opinion of Hon’ble National Commission in Smt.Tilat Chaudhry’s case (supra) the averments of appellant CBD injury is well known risk when a patient undergoes laparoscopic cholecystectomy procedure, but, in the present case it was not laparoscopic procedure  and open surgery was conducted.  More so, as per averments of appellant there was no facility of this treatment at his hospital after CBD injury.  It is alleged that as per standard guidelines he sent for hepaticojejunostomy at Harmony Health Care Centre, Mohali  after CBD injury. When it was to the knowledge of the appellant that CBD injury is a well known risk and he cannot provide treatment after this injury then why he conducted operation at his hospital. He should have made aware complainant and his family members aware about this injury and further complications before conducting the operation.  Whereas he did not do so.  In this way he did not follow the proper procedure. Had it been not well known risk then he could have alleged that it is a rarest of rare case and that is why he conducted the operation.  As per his averments, from ultrasound report it was clear that there were multiple gall stones and gall bladder was dilated. In such a situation he should have referred the patient to other centre immediately.  If complainant has produced report CHolangiogram Ex.C-4 it does not mean that he was having complete endoscopy report. It is simply mentioned therein that CBD was having cut. What was the actual condition is no where mentioned therein.  Unless properly explained, it is not possible for a laymen to know what was the situation. Complainant specifically stated that on 14.04.2008 when endoscopy was conducted he was not aware about that place because he was having severe pain. The case is of due care and caution and good faith in treating patient. In such a situation it was the duty of the appellant-O.P. to prove that complainant was  made  well aware about all these facts. It is a clear case where there is negligence on the part of the appellant. So it cannot be alleged that he followed the proper procedure for this treatment.  These views are also supported by the opinion of Hon’ble National Commission expressed in T. Rama Rao Vs. vijay Hospital & Anr. 2008 (1) CLT 582. (case law cited by complainant counsel).  From the perusal of Ex.C-9, C-10 it is clear that so many matters are pending against the complainant. So these arguments are of no avail.  The findings of the Learned District forum are well reasoned based on law and facts and cannot be disturbed.  Resultantly appeal fails and the same is hereby dismissed.

 

8.  The statutory amount of Rs.25,000/-  deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules.

 

December 14th, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.