Haryana

Kurukshetra

37/2018

Om Pati - Complainant(s)

Versus

C.M.Chaubey - Opp.Party(s)

Akhil Bhasin

19 Feb 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION , KURUKSHETRA.

 

                                                                       Consumer Complaint No.37 of 2018.

Date of instt.:16.02.2018. 

                                                                       Date of Decision:19.02.2021

 

Ompati, aged about 48 years, wife of Late Shri Mange Ram, r/o H.No.2151, Sector-3, Housing Board Colony, Tehsil Thanesar, District Kurukshetra. Now at 1782, Sector-5, Urban Estate, Tehsil Thanesar, District Kurukshetra.

                                                                …….Complainant.                                                  Versus

 

1. Dr. C.M. Chaubey, M/s Saraswati Mission Hospital, 50 Bedded Multispeciality Hospital, Saini Samaj Bhawan, near Birla Mandir Chowk, District Kurukshetra, Haryana, also at M/s Saraswati Mission Hospital, 100 bedded Multispeciality Hospital, Ambala Road, Pehowa-136128, District Kurukshetra.
2. Dr. Sudershan Chugh, M/s Saraswati Mission Hospital, 50 Bedded Multispeciality Hospital, Saini Samaj Bhawan, near Birla Mandir Chowk, District Kurukshetra, Haryana also at M/s Saraswati Mission Hospital, 100 bedded Multispeciality Hospital, Ambala Road, Pehowa-136128, District Kurukshetra.
3. Dr. Vibha Chugh, M/s Saraswati Mission Hospital, 50 Bedded Multispeciality Hospital, Saini Samaj Bhawan, near Birla Mandir Chowk, District Kurukshetra, Haryana also at M/s Saraswati Mission Hospital, 100 bedded Multispeciality Hospital, Ambala Road, Pehowa-136128, District Kurukshetra.
4. M/s Saraswati Mission Hospital, 50 Bedded Multispeciality Hospital, Saini Samaj Bhawan, near Birla Mandir Chowk,
   District Kurukshetra, Haryana also at M/s Saraswati Mission Hospital, 100 bedded Multispeciality Hospital, Ambala Road, Pehowa-136128, District Kurukshetra through its Director/Incharge.
5. Oriental Insurance Co. Ltd., Branch Office at Sabharwal Market, Railway Road, Kurukshetra through its Authorized Person/Branch Manager.

        ….…Opposite parties.

 

Complaint under Section 12 of Consumer Protection Act.

 

Before       Smt. Neelam Kashyap, President.    

                   Ms. Neelam, Member.       

                   Shri Issam Singh Sagwal, Member.                                                 

Present:     Shri Akhil Bhasin, Advocate for the complainant.             

Shri Rajan Chawla, Advocate for opposite parties No.1 to 4.

Shri Gaurav Gupta, Advocate for the opposite party No.5.             

ORDER

                                                                         

                    This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Ompati against M/s Saraswati Mission Hospital and others, the opposite parties.

 

2.             The brief facts of the complaint are that the complainant suffered abdominal pain and was taken by her family members to OP No.4, where Dr. C.M. Chaubey after examining her, diagnosed for Choelitheasis and the same was confirmed by ultrasound (USG). She was operated (Laparoscopic cholecystectomy) on 21.07.2016 by Ops No.1 to 3 and finally on 24.07.2016, she was discharged by the team of doctors of OPs No.1 to 3 after prescribing some medicines. That she followed all the treatment and rest i.e. took all the medicines on time and also followed the diet schedule, rest follow up treatment etc. as she was advised by the OPs. However, she was still having pain in abdomen, for which, she  again visited at OP No.4 from 29.07.2016 to 30.07.2017 in OPD many times and every time, she was scolded by the OP No.1 by saying that “tum ko to baham hain aur kuch nahi”. That as the pain was increasing day by day, on 31.07.2017, she visited at M/s Alchemist Hospital, Panchkula, where Dr. R.K. Batra examined her and advised for another surgery at the earliest stating that there is high level infection in the Sac alongwith divarication of Recti due to earlier surgery done by OPs No.1 to 3 done at Campus of OP No.4 and thereafter, she was again operated on 12.08.2017 there and finally on 15.08.2017, she was discharged from there. That she paid Rs.24,000/- to the OPs as the charges for the surgery done on 21.07.2016 and further spent Rs.50,000/- on OPD fees, medicines, special diet, transportation etc. She has further to pay Rs.1,78,578/- to M/s Alchemist Hospital, Panchkula and also spent Rs.1,50,000/- on medicines, special diet and transportation etc. So, the present case is a clear cut of medical negligence on the part of the OPs. Hence, this complaint.

3.             Upon notice, the opposite parties No.1,2,3 & 4 appeared and filed written statement raising preliminary objections regarding maintainability; cause of action and jurisdiction. It is stated that the patient Ompati was admitted to the OP hospital after she was advised to go to SMH Pehowa, at this in HGE empanelment. The patient was thoroughly examined and diagnosed as a case of chronic Cholecystitis with cholelithiasis. The patient was advised for laparoscopic cholecystectomy. During the admission and follow up, the patient has been asymptomatic excluding mild pain at the incision site. The patient was discharged in stable condition and was advised to follow up at the OPs hospital in Kurukshetra. The patient came for the follow up and stitches removal after 10 days of surgery and stitch line was healthy. After that, the patient never showed up in the OPD as per the record in the hospital database, which is the sole negligence of the patient himself. Though she may have consulted to another consultant in our hospital for any other problem. Everything the OPs No.1,2,3 & 4 has done was done diligently, prudently, with utmost care and caution in treating the said patient. On merits, the rest of the contents of the complaint are denied and prayed for dismissal the same against the OPs No.1,2,3 & 4.

4.             Upon notice, the opposite party No.5 appeared and filed written statement raising preliminary objections regarding maintainability; jurisdiction; complaint is bad mis-joinder and non-joinder of necessary parties. It is stated that if this Hon’ble Forum comes to the conclusion that complaint of the complainant is maintainable, then first liability of the OPs No.1 to 4 to pay the award and then the OP No.5 will pay the same to the OPs No.1 to 4, as per the policy. There is no deficiency on the part of the OP No.5 and prayed for dismissal the complaint against it.

5.             The complainant tendered affidavit Ex.CW1/A alongwith documents Ex.C-1 to Ex.C-78. On the other hand, learned counsel for OPs No.1 to 4 tendered affidavits Ex.RW1/A to Ex.RW3/A. The OP No.5 tendered affidavit Ex.RW1/A alongwith documents Ex.R1 & Ex.R2.  

6.             The learned counsel for the complainant has reiterated all the averments mentioned in the complaint. He argued that the complainant suffered abdominal pain and was taken by her family members to OP No.4, where Dr. C.M. Chaubey after examining her, diagnosed for Choelitheasis and the same was confirmed by ultrasound (USG). The complainant was operated (Laparoscopic cholecystectomy) on 21.07.2016 by Ops No.1 to 3 and finally on 24.07.2016 discharged by the team of doctors of OPs No.1 to 3 after prescribing some medicines. He further argued that the complainant followed all the treatment and rest i.e. took all the medicines on time and also followed the diet schedule, rest follow up treatment etc. as advised by the OPs, but she was still having pain in abdomen for which she was again visited at OP No.4 from 29.07.2016 to 30.07.2017 in OPD many times and every time she was scolded by the OP No.1 by saying that “tum ko to baham hain aur kuch nahi”. He further argued that as the pain was increasing day by day, on 31.07.2017, the complainant visited at M/s Alchemist Hospital, Panchkula, where Dr. R.K. Batra examined her and advised for another surgery at the earliest stating that there is high level infection in the Sac alongwith divarication of Recti due to earlier surgery done by OPs No.1 to 3 done at Campus of OP No.4 and thereafter, she was again operated on 12.08.2017 and spent huge amount. So, there clear cut of medical negligence on the part of the OPs. In support to his contention, he placed reliance upon case laws titled Shoda Devi Vs. DDU/Ripon Hospital Shimla and Ors., 2019 (2) RCR (Civil), 347 (SC); Arun Kumar Manglik Vs. Chirayu Health and Medicare Pvt. Ltd., 2019 (2) RCR (Civil), 225 (SC); M/s Cosmopolitan Hospital Pvt. Ltd. Vs. Veena Krishnan, First Appeal No.1135 of 2016, dod 05.12.2019 (NC); Dinesh Joshi Vs. Dr. Geeta Jindal Aarogya & Anr., Revision Petition No.2381 of 2016, dod 25.01.2019 (NC) AND The New India Assurance Co. Ltd. Vs. Devinder Kumar etc., First Appeal No.416 of 2016, dod 28.03.2018 (SC) .

 

7.             Contrary to it, the learned counsel for the OPs No.1 to 4 has also reiterated all the averments mentioned in the reply. He argued that the patient Ompati was admitted to the OP hospital after she was advised to go to SMH Pehowa, at this in HGE empanelment. He further argued that the patient was thoroughly examined and diagnosed as a case of chronic cholecystitis with cholelithiasis and advised for laparoscopic cholecystectomy. During the admission and follow up, the patient has been asymptomatic excluding mild pain at the incision site. The patient was discharged in stable condition and was advised to follow up at the OPs hospital in Kurukshetra. He further argued that the patient came for the follow up and stitches removal after 10 days of surgery and stitch line was healthy. After that, the patient never showed up in the OPD as per the record in the hospital database, which is the sole negligence of the patient himself, though she may have consulted to another consultant in our hospital for any other problem. He further argued that after this, the patient lost to follow up and never came back. Everything the OPs No.1,2,3 & 4 has done was done diligently, prudently, with utmost care and caution in treating the said patient. To support his contention, he placed reliance case law titled Vinod Jain and Santokba Durlabhji, Civil Appeal No.2024 of 2019 (SC) Arising out of SLP © No.32721/2007).

 

8.             The learned counsel for the OP No.5 has also reiterated all the averments mentioned in his respective reply. Learned counsel for OP No.5 has also placed reliance on the law laid down in cases  Martin F.D’Souza  Vs. Mohd Ishfaq  Civil Appeal No.3541 of 2002 decided on 17.02.2009 and  Jacob  Mathew  Vs. State of Punjab and another, Civil Spprsl no.144145 of 2004 decided on 5.08.2005

 

9.             Admittedly, the complainant was admitted in the OPs No.1 to 4 hospital with pain in right Hypochondric region with abdominal distension and diagnosed as Laparoscopic Cholecystectomy under G.A. and thereafter she was discharged on 24.07.2016, vide Case Summary/Discharge Slip Ex.C-1/C-22.

10.            The plea of the complainant is that after the said operation, she was still having pain in abdomen, for which, she was again visited at OP No.4 from 29.07.2016 to 30.07.2017 in OPD many times. To support this contention, the complainant produced receipts of Mars Medical Store as Ex.C28/Ex.C30 and slip of OPD as Ex.C29 on the case.

 

11.            In this case operation of the complainant was conducted on 21.07.2016 by OPs no.1 to 3 and she was discharged finally on 24.07.2016 from the hospital.  The case of the complainant is that she was still having abdomen pain and she visited the OPs many a times but nothing has been done and ultimately she was again operated upon at Alchemist Hospital, Panchkula.  The complainant has  placed on the file documents Ex.C-29   which is prescription slip of Saraswati  Mission Hospital and Ex.C-28 dated 6.03.2017  is bill of medicines purchased by her.  From 21.07.2016 to 6.03.2017  she has failed to place on record any evidence to show that she ever visited the OPs for her ailment during this period.  She was again operated on 12.08.2017 at Alchemist Hospital, Panchkula for Hernia.  From the perusal of Ex.C-2 discharge summary of  Alchemist Hospital, it is clear that said operation of Hernia has no connection with the  prior operation  done by the OPs. 

 

12.            Further, the complainant has failed to place on record any expert report or evidence to show that there was any medical negligence   on the part of the OPs while conducting operation of the complainant. The complainant has also failed to examine any expert to prove that there was any medical negligence on the part of the OPs.  In the absence of any expert report or evidence to show that there was any medical negligence on the part of the OPs, OPs cannot be said to be deficient in services and as such the  present complaint  deserves to be dismissed.

13.            In Jacob Mathew’s case (Supra) Hon’ble Supreme Court has held “that a private complaint against doctor may not be entertained unless the complainant is supported by another competent doctor.  In Martin F.D’Souza’s case it has been held that “An medical   practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course  of treatment in preference to another.  He would be liable only where his conduct fell below that of the standard of a  reasonable  competent  practitioner in his field.”

               

                              Relying upon the citations given  by the OPs, we do not find any merit in the present complaint and the same  deserves to be dismissed.

                           The citations given on behalf of the complainant are not applicable to the present case.

 

14.                    As a result of our above findings, we conclude that there is no merit in the present complaint and the same is hereby dismissed. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

 

Announced in open commission:

Dt.:19.02.2021                                            (Neelam Kashyap)

                                                                     President.

 

 

(Issam Singh Sagwal),         (Neelam)       

 Member                              Member.