DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 249 of 04-06-2010

Decided on : 21-02-2011

1. Nasib Kaur widow of Gurjant Singh, aged about 48 years

2. Parminder Singh aged about 26 years ) Sons of

3. Amrit Pal Singh aged about 22 years ) Gurjant Singh

   All residents of Village Gobindpura, Tehsil & District Bathinda.

....Complainants

Versus

1. Badyal Hospital Bibi Wala Road, Bathinda, through its Prop/Partner/ Manager Dr. Rajesh Badyal

2. The Oriental Insurance Co. Ltd., (A Govt of India undertaking Regd. And Head Office, Oriental House S 25/27 Asafari Road, New Dekhi R/o SCO 109-110-111 Swendra Building, Sector 17-D, Chandigarh having office Barnala Road, above Green Bajaj Rampura Phul, District Bathinda, through Manager.

3. Dr. Rajesh Kumar Sachar C/o Badyal Hospital, Bibiwala Road, Bathinda.

4. United India Insurance Co. Ltd., Divisional Office, The Mall, Bathinda, through its Divisional Manager

.... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

QUORUM

Ms. Vikramjit Kaur Soni, President

Dr. Phulinder Preet, Member

Sh. Amarjeet Paul, Member

For the Complainant : Sh. K.S. Bhullar, counsel for the complainant.

For the Opposite parties : Sh. Rajiv Gupta, counsel for the opposite party Nos. 1 & 3

Sh. Vinod Garg, counsel for opposite party No. 2.

Sh. M R Gupta, counsel for opposite party No. 4.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. This complaint has been filed by the complainants under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). On 26-03-2010, Gurjant Singh, husband of complainant No. 1 and father of complainant Nos. 1 & 2 was having severe stone pain and accordingly the complainants alongwith their relatives Labh Singh and Mithu Singh took Gurjant Singh to the hospital of opposite party No. 1. The opposite party No. 1 conveyed them that there was stone in the kidney (Rt.) of Gurjant Singh and told them that immediate admission of Gurjant Singh was very essential for pre-operative tests. Accordingly, the complainants and other attendants gave their consent for the admission of Gurjant Singh with opposite party No. 1 and he got deposited an amount of Rs. 15,000/- from the complainants. The opposite party No. 1 admitted Gurjant Singh in his hospital at about 11.00 a.m. Thereafter opposite party No. 1 obtained Rs. 5,000/- for different tests and Rs. 5,000/- as cost of blood. At about 4.00 p.m, the opposite party No. 1 got deposited Rs. 25,000/- more on account of operation fee and opposite party No. 1 started the operation of patient Gurjant Singh. The operation was started at about 4.00 p.m. but till 5.00 p.m. the complainants were not apprised about the fate of operation. At 6.00 p.m. on equiry, the complainant and other attendants of patient were conveyed by the assistants of opposite party No. 1 that the operation was still going on successfully and they need not to worry. At about 7.30 p.m. the opposite party No. 1 through his assistants called the complainants and other relatives of Gurjant Singh that operation has been conducted successfully and they could meet the patient. The assistants of opposite party No. 1 conveyed the complainants and relatives of patient, to take one tablet each before entering the operation theatre on account of precaution from any disease and after consuming the tablets, they lost their senses. Thereafter, the opposite party No. 1 conveyed to them that patient Gurjant Singh had died and while delivering the dead body of Gurjant Singh, the assistants of opposite party No. 1 again obtained the signatures and thumb impressions of attendants of deceased Gurjant Singh on blank papers we well as on blank printed forms. The complainants alleged that Gurjant Singh had died due to gross negligence of opposite party No. 1 as he has not got conducted the necessary tests before the operation. The opposite party No. 1 is a Bone/Joint Specialist and did not know about the stone/kidney problems but he conducted the operation without the assistance of a competent doctor in this field. The deceased Gurjant Singh was aged about 50 years and was quite healthy. He was agriculturist by profession and used to cultivate land measuring 15 killas of land. The complainants alleged that there was deficiency in service on the part of opposite party No. 1 in giving treatment and performing the operations and by not referring the patient to some competent doctor/institution to cure the deceased.

2. The opposite party No. 1 filed his written version and pleaded that Badyal Hospital is a Multi-speciality Hospital and Trauma Centre and patients of Orthopedics, Pediatrics, Urology and Plastic Surgery are treated in the said Hospital. Dr. Rajesh Badyal is M.S. (Ortho) and patients of Orthopedic only are treated by him. Medical and Surgical Specialists are required for different medical and surgical fields to look after and treat the patients seeking treatment for their other sufferings in this Multi Speciality Hospital. Dr. Rajesh Kumar Sacher, M.S. MCH (Urology) looks after and treats patients of Urology. On 26-03-2010 patient Gurjant Singh came to Urology OPD of opposite party No. 1 with complaint of right flank pain. He had already been investigated for this complaint by some other doctor and produced one IVP (Intra Venous Pyelography i.e. multiple x-rays taken after injecting dye intravenously). This IVP showed right renal pelvic stone. The patient was suitably examined by Dr. Rajesh Kumar sachar and the patient and his attendants were explained the need of surgery for removal of renal stone. It was clarified that there was no emergency involved and the patient could opt for surgery as and when he so desired. As they decided to proceed for operation, the patient was got admitted in the hospital and necessary bed head ticket was prepared by Dr. Rajesh Kumar Sachar. The patient was duly examined physically and clinically before performing the operation. All pre-operative investigations were found perfectly fit to undergo operations. The attendants incurred expenses of only Rs. 1500/-. It has been denied that patient and his attendants paid Rs. 5,000/- to the hospital for above said test or additional Rs. 5,000/- on account of blood cost. Blood is always arranged by the patient and his attendants from outside i.e. Blood bank at their own cost and hospital charges no amount for it. No payment for the operation was got deposited from the patient and his attendants as they had promised to pay the same shortly afterwards. The surgery commenced around 4.00 p.m. and was conducted by Dr. Rajesh Kumar Sachar in the presence of Dr. J C Garg,(Anesthetist) and team of assistants, which was a complete success. Firstly spinal anesthesia was administered by Dr. J C Garg and condition was checked. PCNL surgery started at 4.30 p.m. and was carried out as per due procedure and stone removed successfully. After completion of surgery the patient was shifted to ICU and about 6.30 p.m. the patient developed sudden severe bradycardia and fall in oxygen saturation. Immediate resuscitative measure taken but he had cardiac arrest after that. Cardiopulmonary resuscitation was done and all other possible measures taken, but he could not be revived and unfortunately expired. The death occurred due to reasons beyond control and without any lapse, omission, fault or negligence on the part of operating team. The doctor only treats and cannot be held liable for unforeseen, unexpected calamity not caused by act/misconduct or lapse.

3. The opposite party No. 2 in its written reply has pleaded that as per the version of opposite party No. 1, Dr. Rajesh Badyal has not checked or examined the deceased, rather Dr. Rajesh Kumar Sacher has checked and examined the deceased. The opposite party No. 2 has insured the acts of Dr. Rajesh Badyal only performed in his individual professional work and not the entire hospital of Dr. Rajesh Badyal, wherein other medical services are provided by other doctors including Dr. Rajesh Kumar Sacher.

4. The opposite party No. 3 in his written version pleaded that he is duly qualified medical specialist holding the degree of M.S M. Ch (Urology) who treats patients suffering from urine and kidney ailments in Badyal Multispeciality Hospital & Trauma Centre. On 26-03-2010, the patient Gurjant Singh came to Urology OPD of Badyal Multi-speciality Hospital and Trauma Centre with complaint of right blank pain. He had already been investigated for this complaint by some other doctor and produced one IVP (Intra Venous Pyelography i.e. multiple X-rays taken after injecting dye intravenously). This IVP showed right renal pelvic stone. The patient and his attendants were informed that PCNL surgery would be performed which is an advanced new key hole technique for removal of renal stone. The patient and his attendant Labh Singh gave consent for undergoing PCNL surgery for removal of renal stone and signed necessary papers. The patient was got admitted in the hospital and bed head ticket was prepared by opposite party No. 3. The patient was duly physically and clinically examined before performing the operation. His B.P. Pulse were checked and found normal. ECG was obtained which revealed no abnormality. All pre-operative investigations of urine, blood, sugar, urea, creatinine, Hep. B, HIV test and Hep. C were checked and patient was found fit to undergo operation. Dr. Rajesh Badyal never came into the picture at all and neither examined nor treated the patient. The surgery commenced around 4.00 p.m. and was conducted by opposite party No. 3 in the presence of Dr. J C Garg, anaesthesist and team of assistant. Firstly spinal anesthesia was administered by Dr. J C Garg and condition was checked. PCNL surgery started at 4.30 p.m. and was carried out as per due procedure and stone removed successfully. All this consumed about one hour. After completion of surgery the patient was shifted to ICU where his progress was monitored regularly. About 6.30 p.m. he developed sudden severe bradycardia and fall in oxygen saturation. Immediate resuscitative measure taken but he had cardiac arrest after that. Cardiopulmonary resuscitation was done and all other possible measures taken, but he could not be revived and unfortunately expired. The attendants were duly informed accordingly. The operating team was not guilty of any negligence or lapse whatsoever and the death was sudden, unfortunate, unexpected and due to factors beyond control. This was the position so accepted by the attendants at the relevant time and accepting the death to be will of God they had taken possession of the dead body and signed the relevant papers in token of consent without raising any protest or dispute of any kind. The attendants were neither asked to administer any tablet nor they were permitted to access to operation theatre.

5. The opposite party No. 4 in its written version pleaded that opposite party No. 3 has obtained doctors professional indemnity policy effective from 17-04-2010 to 16-04-2011 for the sum of Rs. 10,00,000/- and liability of opposite party No. 3 is limited to Rs. 5.00 Lacs in one accident to indemnify the insured during the policy period.

6. Parties have led their evidence in support of their respective pleadings.

7. Arguments heard and written submissions submitted by the parties perused.

8. The learned counsel for the complainant submitted that Gurjant Singh was having severe stone pain and accordingly he was brought to the hospital of opposite party No. 1 by the complainants and his relatives Labh Singh and Mithu Singh. The opposite party No. 1 on checking Gurjant Singh conveyed that there are stones in the kidney (Rt.) and the same required immediate operation. The complainant and his attendants gave consent and opposite party No. 1 got deposited Rs. 15,000/- from them. Gurjant Singh was admitted in the hospital at about 11.00 A.M. The opposite party No. 1 got deposited Rs. 5,000/- for the tests and Rs. 5,000/- as cost of blood. Thereafter at about 4.00 p.m. the opposite party No. 1 got deposited Rs. 25,000/- more on account of operation fee and the assistants of opposite party No. 1 took Gurjant Singh to the operation theatre. Although the operation was started at about 4.00 p.m. but till 7.30 p.m. the attendants of Gurjant Singh were not apprised about the fate of operation. At 7.30 p.m. the opposite party No. 1 through his assistants called the complainants and relatives of Gurjant Singh and conveyed that operation has been conducted successfully and they can meet him. The opposite party No. 1 conveyed to them in the operation theater that patient Gurjant Singh had died and could not be saved by them. The learned counsel for the complainant submitted that patient Gurjant Singh had died due to gross negligence of opposite party No. 1 as he before starting the operation has not got conducted the necessary tests. There is gross negligence and deficiency in service on the part of opposite party No. 1 in giving treatment and performing the operations and by not referring the complainant to some competent doctor/institution to manage the patient.

9. The learned counsel for opposite party No. 1 submitted that on 26-03-2010, patient Gurjant Singh came to Urology OPD of Badyal Multi-Speciality Hospital and Trauma Centre with complaint of right flank pain. He had already been investigated for this complaint by some other doctor and produced one IVP (Intra Venous Pyelography i.e. multiple X-rays taken after injecting dye intravenously). The patient was suitably examined by Dr. Rajesh Kumar Sachar and they were informed that PCNL (percutaneous Nephrolithotomy) surgery would be performed for removal of renal stone. The patient never came in contact with opposite party No. 1 and entire examination and consultation was done by Dr. Rajesh Kumar Sachar. The Bed head ticket was prepared by Dr. Rajesh Kumar Sachar. The attendants incurred expenses of only Rs. 15,000/-. The opposite party No. 1 never came into picture at all and neither examined nor treated the patient. The operation was performed in the operation theatre by Dr. Rajesh Kumar Sachar, Dr. J C Garg and the team from 4.00 p.m. onwards and the operation was successful. Firstly spinal anesthesia was administered by Dr. J C Garg and condition was checked. Thereafter PCNL surgery started at 4.30 p.m. and was carried out as per due procedure and stone removed successfully. All this consumed one hour. After completion of surgery the patient was shifted to ICU and at about 6.30 p.m. he developed sudden severe bradycardia and fall in oxygen saturation. Immediate resuscitative measures taken but he had cardiac arrest after that. Cardiopulmonary resuscitation was done and all other possible measures taken, but he could not revived and unfortunately expired. The attendants were duly informed and accordingly they had taken possession of the dead body and signed the relevant papers in token of consent without raising any protest or dispute of any kind.

10. The learned counsel for opposite party No. 2 submitted that treatment in question was not provided by Dr. Rajesh Badyal, rather the same has been provided by Dr. Rajesh Sacher, MS, MCH (Urology). The opposite party No. 2 has insured the acts of Dr. Rajesh Badyal only and not the entire hospital.

11. The learned counsel for opposite party No. 3 submitted that he is duly qualified medical specialist holding the degree of M.S M. Ch (Urology) who treats patients suffering from urine and kidney ailments in Badyal Multispeciality Hospital & Trauma Centre. On 26-03-2010, the patient Gurjant Singh came to Urology OPD of Badyal Multi-speciality Hospital and Trauma Centre with complaint of right flank pain. He had already been investigated for this complaint by some other doctor and produced one IVP (Intra Venous Pyelography i.e. multiple X-rays taken after injecting dye intravenously). This IVP showed right renal pelvic stone. The patient and his attendants were informed that PCNL surgery would be performed which is an advanced new key hole technique for removal of renal stone. The patient and his attendant Labh Singh gave consent for undergoing PCNL surgery for removal of renal stone and signed necessary papers. The patient was got admitted in the hospital and bed head ticket was prepared by opposite party No. 3. The patient was duly physically and clinically examined before performing the operation. His B.P. Pulse were checked and found normal. ECG was obtained which revealed no abnormality. All pre-operative investigations of urine, blood - sugar, urea, creatinine, Hep. B, HIV test and Hep. C were checked and patient was found fit to undergo operation. Dr. Rajesh Badyal never came into the picture at all and neither examined nor treated the patient. The surgery was started at about 4.00 p.m. and was conducted by opposite party No. 3 in the presence of Dr. J C Garg, anaesthesist and team of assistant. Firstly spinal anesthesia was administered by Dr. J C Garg and condition was checked. PCNL surgery started at 4.30 p.m. and was carried out as per due procedure and stone removed successfully. All this consumed about one hour. After completion of surgery the patient was shifted to ICU where his progress was monitored regularly. About 6.30 p.m. he developed sudden severe bradycardia and fall in oxygen saturation. Immediate resuscitative measure taken but he had cardiac arrest after that. Cardiopulmonary resuscitation was done and all other possible measures taken, but he could not be revived and unfortunately expired. The attendants were duly informed accordingly. The operating team was not guilty of any negligence or lapse whatsoever and the death is sudden, unfortunate, unexpected and due to factors beyond control. This was the position so accepted by the attendants at the relevant time and accepting the death to be will of God they had taken possession of the dead body and signed the relevant papers in token of consent without raising any protest or dispute of any kind. The attendants were neither asked to administer any tablet nor they were permitted to access to operation theatre. The learned counsel for opposite party No. 3 further submitted that IVP report produced by Gurjant Singh indicated presence of stone in right kidney of patient and no further test to confirm this diagnosis was required.

12. The learned counsel for opposite party No. 4 submitted that opposite party No. 3 has obtained doctors professional indemnity policy effective from 17-04-2010 to 16-04-2011 for the sum insured Rs. 10,00,000/- and liability of opposite party No. 3 is limited to Rs. 5.00 Lacs in one accident to indemnify the insured during the policy period. The opposite party No. 3 purchased insurance policy w.e.f 17-04-2010 whereas patient Gurjant Singh was operated on 26-03-2010, hence this complaint against opposite party No. 4 is not maintainable as the patient had died prior to the purchase of the policy. Hence, the doctor is not indemnified under the said policy.

13. Dr. Rajesh Sachar, opposite party No. 3 has deposed in his affidavit Ex. R-10 that :-

    “.........patient Gurjant Singh visited him first time on 26-03-2010 with complaint of Right Flank Pain. He had already been investigated for this complaint by some other doctor and produced one IVP (Intra Venous Pyelography i.e. multiple x-rays taken after injecting dye intravenously). The IVP indicated presence of stone in right kidney of patient who was aware of the necessity to get the same removed through operation. No further test to confirm this diagnosis was required. Original IVP report of Radiologist and few X-rays attached therewith was produced by the opposite parties on record of the Forum earlier. .......and now appears to have been misplaced.

    ..... before commencing the operation the patient was duly physically and clinically examined by the deponent. His BP Pulse was checked and found normal. ECG was also obtained, which reveals no abnormality. All pre-operative investigations of Urine, Blood, Sugar, Urea and creatInine were got done from R K Lab and report checked and patient was found duly fit to undergo operation.

    ..........the surgery commenced around 4.00 p.m was conducted in accordance with established medical procedure by the deponent in presence of Dr. J C Garg, Anesthetist and team of assistant, which operation was a complete success. Firstly spinal anesthesia was administered by Dr. J C Garg and condition was checked. PCNL surgery started at 4.30 p.m. and was carried out as per due procedure and stone removed successfully. All this consumed about one hour.

    ......About 6.30 p.m. he developed sudden severe bradycardia and fall in oxygen saturation. Immediate resuscitative measures taken but he had cardiac arrest after that. Cardiopulmonary resuscitation was done and all other possible measures taken, but he could not be revived and unfortunately expired around 7.00 p.m.”

    A perusal of Progress Sheet Ex. R-12 reveals that condition of patient was shown good in general from 5.30 p.m. 6.30 p.m. Thereafter a note has been given on this Progress report that “O-2 (Oxygen) inhalation given. Injection Aderline IV given. Anesthetist called immediately.” “Immediately ETT No. 8.0 per ml. Patient put on ventilator. Isotropics contd. Fluids & blood pushed. Aderline infusion given. Efcorlin 200 mg given. CPR Contd., Aderline repeated. Atropine repeated 100% O-2 Contd., D C Shock given. Repeated. Patient did not improve . Had cardiac arrest at 6.50 p.m.” As per own record of the opposite parties the patient Gurjant Singh's condition was fine after operation and suddenly he suffered cardiac arrest.

14. A perusal of record produced on file shows that there is no record on the file to show that Dr. J C Garg, Anesthesist was called to administer anesthesia to the patient as not even a single document produced on file by the opposite parties bears the signatures of Dr. J C Garg. No affidavit of Dr. J C Garg, has been produced on file to prove that he administered anesthesia to the patient or he was assisting Dr. Rajesh Sacher at the time of performing operation of Gurjant Singh. Further more, as discussed above, as per progress report of the opposite parties, when the condition of the patient started deteriorating, the operating doctor i.e. opposite party No. 3 himself has started giving treatment to the patient and called Anesthetist whereas when the patient was having heart problem, it was the duty of the attending doctor /operating doctor that he should have called the Heart Specialist or should have referred the patient to institute of such field which would have saved the life of the patient, but the opposite party no. 3 instead of taking such action, kept on treating the patient by himself and ultimately, when no proper post operative management treatment was provided to the patient, he died. No affidavit of any member of the team of assistants is also produced on file to show that the patient had been treated by a team.

15. The learned counsel for the opposite party No. 3 submitted that no expert evidence has been produced on file to prove the negligence on the part of the operating doctor. This Forum is of the view that claim of complainant cannot be rejected on the ground that expert witness was not examined. The support can be sought by the law laid down by the Hon'ble Supreme Court in the case titled 2010(2)RCR (Civil ) page 929 wherein it has been held :-

    “Medical Negligence – Claim of petitioners cannot be rejected only on the ground that expert witness was not examined to prove negligence of Doctor – It is not required to have expert evidence in all cases of Medical Negligence.”

16. The opposite party No. 1 i.e. Dr Badyal has tried to shed his liability on the account that he has not treated or operated the patient whereas a perusal of complaint itself shows that he is the Proprietor of said hospital and assisted Dr. Rajesh Sacher in treating the patient Gurjant Singh. Moreover, if Dr. J C Garg, has given anesthesia, he is also engaged by the hospital and not by Dr. Rajesh Sacher independently. The learned counsel for opposite party No. 1 submitted that opposite party No. 1 has not examined or treated the patient and as such there is no deficiency in service on his part, stands repelled. The hospital is liable for the acts of its employees. Hence, the hospital is vicariously liable for the acts of its employees/staff/treating doctors etc., The support can be sought by the law laid down by the Hon'ble Supreme Court in the case titled 2009(3) RCR (Civil) page 174 Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka and Others wherein it has been held :-

    “Evidence Act, Section 101, 102, 103 – Medical Negligence – Onus to prove – Held :-

    In a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or to the attending doctor concerned the onus then shifts on to the hospital to satisfy the Court that there was no lack of care of diligence 2004(4) RCR (Civil) 512 (SC).”

17. In view of what has been discussed above, this complaint is accepted with Rs. 5,000/- as cost and Rs. 2.00 Lacs as compensation against opposite party Nos. 1 & 3 and dismissed qua opposite party Nos. 2 & 4. The awarded amount will be paid by opposite party Nos. 1 & 3 jointly and severally to the complainants in equal shares.

    The compliance of this order be made within 30 days from the date of receipt of copy of this order. In case of non-compliance of the order within the stipulated period, the awarded amount will carry interest @9% P.A. from the date of order till realization. A copy of this order be sent to the parties concerned free of cost and the file be consigned.

Pronounced

21-02-2011 (Vikramjit Kaur Soni)

President

(Dr. Phulinder Preet)

Member

(Amarjeet Paul) Member