Punjab

StateCommission

CC/10/7

Shashi Bala - Complainant(s)

Versus

Chahal Hospital - Opp.Party(s)

Rajan Bansal

06 Jun 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   Consumer Complaint No.07 OF 2010

 

                                                          Date of Institution: 22.01.2010  

                                                          Date of Decision : 06.06.2015

 

Shashi Bala, aged about 50 years, wife of Sh. Naresh Chawla, resident of Mandi Dabwali, District Ferozepur.

 

                                                                             …..Complainant…..

                                                Versus

 

Chahal Hospital (Multi Specialty Hospital) Opposite DAV College, Bibi Wala Road, Bathinda through Dr. J.S. Chahal, its proprietor and owner.

 

                                                                             ….Opposite Party….

 

         

Consumer Complaint U/s 17 of the Consumer Protection Act, 1986 (as amended up to date).

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Vinod Kumar Gupta, Member

          Shri Harcharan Singh Guram, Member.

 

Present:-

 

          For the complainant                   :  Sh.Rajan Bansal, Advocate

          For the Opposite parties            :  Sh.Alka Sarin, Advocate

 

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The complainant Shashi Bala  has filed this complaint U/s 17 of the Consumer Protection Act 1986 (for short the "Act) against the OPs on the allegations that she was first operated upon on 14.06.2006 at Raj Hospital Mandi Dabwali, for removal of the Appendix (Laparoscopic operation) and her Appendix was removed thereat. She underwent various diagnostic tests and ultrasound and all the reports were fine and hence she was discharged from the above hospital on 16.06.2009. After three and half months, the complainant felt pain in the abdomen and she got the CT scan and sonogram test of her full abdomen at Omega Centre, Bathinda and it was duscovered by the said Omega Centre that there was some cavity (puss) in gravitation and tissue of skin in left side port of complainant. There was no evidence of any free fluid seen in abdomen pelvis. No free fluid in the plural cavities on either side and hence all the abdomen parts were normal and there was no extra fluid seen in the abdomen at that time of the complainant. Thereafter, she contacted Dr. J.S Chahal, who assured her that he was competent to do this type of operation and would tackle this problem without any complication. He further stated that a minor operation has to be performed and he would explode the infected portion and drain out all the puss/collected fluid.  She was admitted at Chahal Hospital, Bathinda for the above mentioned minor operation on 05.10.2009 and was operated there on the same day. A clinical test was conducted on 05.10.2009 and her WBC/TLC count came out to be 8100. She was operated upon by Dr. J.S. Chahal on 5.10.2009 and Dr. J.S. Chahal apprised the husband of the complainant that she would gain her consciousness within 4-5 hours, but she did not gain consciousness. Her blood pressure was measured and her pulse rate was examined by Dr. J.S. Chahal at that time, when she did not gain consciousness even after 8-10 hours. Her B.P and pulse rate were checked and her B.P was found 50/80 and pulse rate was 60 at that time. The complainant was shifted to ICU without intimating the husband of the complainant. Her blood samples were taken, which were sent to Dr. Monika's Lab on 06.10.2009 and as per the reports, the TLC count of the complainant was found to have risen to 26000 from 8100. The OPs had not informed the husband of the complainant about this sudden jump in her TLC count. As per the said reports, infection had increased by 17900 in a single day, as shown by the TLC count. The OP administered glucose drips as well as some antibiotics to the complainant and she was given three bottles of glucose, but all the same she did not pass the urine. On 07.10.2009, the blood of the complainant was got tested and as per the report, her TLC had risen to 40000 from 26000, which caused anxiety and panic to the relatives of the complainant. The complainant claimed to have removed all the collected fluid at the time of operation but due to utter negligence and fault of the OP, the whole of the fluid collected was not properly removed by the OP, which caused complications. The family members of the complainant wanted to consult some other doctor, but OP kept on lingering the matter on lame excuses. The complainant was discharged by Dr. Chahal with great persuasion and she was then taken to DMC Ludhiana on 7.10.2009 with acute renal failure due to septicemia and in the discharge card, it was recorded that complainant was discharged due to septicemia. At the time of admission of the complainant at DMC Ludhiana, the ultrasound test of the complainant was conducted on 7.10.2009 and it was found that fluid collected in echoes made in approximately 8.1 cm. The doctor of DMC Ludhiana said that Dr. J.S Chahal conducted the operation with gross negligence causing deterioration in condition of the complainant. The complainant was shifted to ICU and further investigation was started and it was found that infection in her blood was much higher than normal range and septicemia had increased in the entire body because fluid was mixed with the blood and thereby infected the multi organs of the body. At the time of admission in the DMC Ludhiana, the condition of the complainant was brought to the normal level and she was discharged on 7.11.2009  and it was so clearly mentioned in the discharge summary of the complainant. She has alleged that she has spent Rs.6,50,000/- on the treatment at various hospitals including test charges, operation charges, medicines, transportation charges and so on. She has alleged that the medical negligence on the part of the OP as she became the patient of Neuro due to above wrong surgery, which is evidenced by prescription slip of Sobti Neuro & Super Specialty Hospital Ludhiana. She alleged that OP conducted the operation with careless conduct. The complainant claimed compensation of Rs.6,50,000/- from OP along with interest @ 18% on account of medical negligence of the OP in causing above complications to her. The complainant has further prayed for Rs.50,000/- as costs of litigation.

2.      Upon notice, OP appeared and filed written reply raising preliminary objections that complaint is bad for non-joinder of necessary parties in as much as Dr. J.S. Chahal against whom allegations have been made, has not been impleaded as a party by the complainant in his individual capacity. The complaint is alleged to be misconceived, unwarranted and not maintainable. It was further averred that complainant has not produced any documentary evidence or expert witness to prove any complications suffered by the complainant directly due to negligence act on the part of the OP. Any negligence on the part of OP was vehemently denied. It was further averred that complainant was operated upon earlier at Raj Hospital Mandi Dabwali for the removal of her appendix. The complainant approached Dr. J.S Chahal for the complications arising out of her previous surgery. It was found that she had  a pus-oozing sinus at the site of the left port of the previous surgery conducted at Dabwali. The complainant had pus discharging sinus for a period of three months before she approached Dr. J.S. Chahal for the treatment. After conducting all relevant and necessary investigations, she was operated upon under general anesthesia on 05.10.2009. There was a big pocket on the abdominal wall below the skin containing thick pus. The pus was removed and the surrounding dead tissue were cleared. She was thereafter shifted to the ward, where she regained consciousness and was fine on the operative day i.e. on 5.10.2009. On 6.10.2009, she had restlessness and for close monitoring, she was shifted to the ICU. Laboratory investigations revealed increased TLC count and she was put on injection Durataz and injection Ornida, which are both antibiotics to control the infection/septicemia. There was decreased urinary output, Nephrologists Dr. J.J. Singh was consulted and as per the advice of the consultant, the same treatment was continued to her. She was being managed properly by the OP and at the request of the relatives of the complainant, she was referred to DMC Ludhiana  at their own will. Mr. Jaswinder Singh, accompanied the complainant to DMC, where she was admitted for further treatment. She was managed conservatively at DMC Ludhiana, as is clear from the record.  Every surgical operation is always attended by considerable risk. Every advance in technique  is also attended by risks. The OP denied any negligence on their part emphatically. It was further averred that in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion, and one man clearly is not negligent merely because his conclusion differs from that of other professional men  or he has displayed less skill or knowledge than others would have shown. The complainant has failed to prove any breach of the duty by the Op in this case. It was further averred that doctors of the OP followed the established medical practice in conducting the surgical procedure of wide excision of old pus cavity of complainant. The complaint was resisted even on merits by the OP and any medical negligence was denied emphatically by the OP in this case. It was denied that complainant became the patient of the Neuro. It was further averred that Dr. J.S. Chahal has conducted over 15000 surgeries and he is  a competent surgeon and hence OP prayed for  the dismissal of the complaint.

3.      The complainant tendered in evidence the affidavit of the complainant Ex.CW-1/A, affidavit of Aseem Chawla Ex.CW-2/A, affidavit of Naresh Chawla Ex.C-3/A, copy of discharge card Ex.C-1 and Ex.C-2, Romana Ultrasound Echo and Colour Doppler Centre Ex.C-3, scan of ultrasound Ex.C-4, ultrasound report Ex.C-5, tests from Shiv Diagnostic Lab Ex.C-6 and Ex.C-7, CT Scan report Ex.C-8, reporting form Ex.C-9, test from Shiv Diagnostic Lab Ex.C-10, report from Ex.C-11 and Ex.C-12, discharge slip Ex.C-13 and Ex.C-14, case history Ex.C-15, discharge summary Ex.C-16 and Ex.C-17, test report Ex.C-18, culture report and other tests reports Ex.C-19 to Ex.C-122, bills of medicines Ex.C-123 to Ex.C-173, CT Scan from Sobti Neuro and Super Specialty Hospital Ex.C-174 and Ex.C-175, case history Ex.CF-176 and Ex.C-177.  As against it, OP tendered in evident affidavit of Dr. J.S Chahal of Chahal Hospital Ex.RW-1, copy of indoor file Ex.R-1/1, document regarding specially developed for dry skin conditions Ex.R-1/2, copy of textbook of surgery Ex.R-1/3, affidavit of Dr. Mela Bansal, Bansal Surgical and Maternity Hospital Ex.RW-2.

 4.     We have heard Ld.Counsel for the parties and have also examined the record of the case.  The complainant has filed the complaint on the allegations of medical negligence on the part of OP in this case. We have examined the evidence placed on record by both sides. Admittedly, the complainant was earlier operated upon on 14.6.2006 at Raj Hospital, Mandi Dabwali for the removal of her Appendix. The complainant felt pain in the abdomen after three and half months therefrom and she got CT scan   and sonogram test of her full abdomen at Omega Centre, Bathinda, where it was found that there was some cavity (Puss) in gravitation and tissue of skin in her left side port. She approached the OP Dr. J.S. Chahal for this purpose to conduct minor operation on 5.10.2009. Admittedly,  the OP conducted tests of the complainant and her WBC/TLC count came out to be 8100 before operation. She was operated upon by Dr. J.S. Chahal on 5.10.2009 and she became unconscious. Even after 4-5 hours, she still did not gain consciousness, then husband of the complainant again called Dr. J.S. Chahal and he again told the husband of the complainant that it was due to anesthesia injection and she would be alright within 2-3 hours, but neither her blood pressure was checked nor her pulse rate was examined by the above doctor at that time.  Thereafter, even after the wait of 8-10 hours, when the complainant did not gain consciousness, then her B.P and pulse rate were checked and BP was just 50/80 and pulse rate was 60 and thereafter she was shifted to ICU for TLC count. The blood samples of the complainant were taken and it was sent to Dr. Monika's lab on 6.10.2009 for analysis and as per the reports the TLC count of complainant, it was found to have risen to 26000 from 8100. As per the said report, infection had increased by 17900 in a single day as shown by the TLC count. Thereafter, glucose drips was administered  with antibiotics by the OP to her and TLC count rose to 40000 from 26000. She has alleged the medical negligence on the part of OP in not conducting the operation properly. On the other hand, OP categorically averred that he followed the Standard Medical Practice and Dr. J.S. Chahal is a qualified surgeon. Admittedly, she was taken to DMC Ludhiana  on 7.10.2009, where she was treated successfully.

5.      On the basis of the above-referred pleadings of both sides, we are called upon to determine in this case, as to whether any medical negligence on the part of OP is proved by the complainant or not. Ex.C-2 is discharge card by OP hospital at Dabwali proving that complainant was admitted on 14.6.2006  and discharged on 16.6.2009 and she was operated upon for removal of appendix. Ex.C-3 is ROMANA Ultrasound Echo & Colour Dopper Centre dated 13.06.2009, Ex.C-6 is report of Shiv Diagnostic Lab. Thereafter, the complainant felt sudden pain, as per her case and she contacted Omega Diagnostic Centre Bathinda, vide Ex.C-8. Report of Dr. Anu Gupta , M.D Radio-Diagnostic of CT-scan Ex.C-8 and Ex.C-9 are on the record. The discharge slip of Chahal Hospital dated 7.10.2009 is Ex.C-13 is on the record. It is recorded in the test report of Dr. J.S. Chahal  that she developed septicemia, which was managed with antibiotics, but she was discharged at own request and admitted in DMC Ludhiana and discharge slip Ex.C-16 is on the record, where she was treated successfully. The laboratory reports and other documents like medicines bills are Ex.C-18 to Ex.C-173. Ex.C-174 is Sobti Neuro & Super Specialty Hospital, however, we find that there is no direct evidence on the record that complainant suffered this complications due to above infection only. The OP submitted that they had taken proper precautions and Dr. J.S Chahal was qualified surgeon and standard treatment of medical practice was followed in her case, hence, there is no breach of duty on their part in this case.

6.      We find that during the pendency of this complaint order was passed by this bench on 10.2.2010 calling the report of the expert doctors from the doctors of PGI Chandigarh, whether any medical negligence is made out against OP or not. This order was passed by this bench on 10.2.2010. The report of tertiary center or board of directors has been obtained by this Commission during pendency of this case  to settle the controversy, as to whether there has been any medical negligence on the part of OP in this case or not. The Judges are just the laymen in medical science and they need expert bodies report to assist them in coming to the correct conclusion. Expert report is relevant under Section 45 of the Evidence Act in deciding such type of controversy. The report of the Board of Experts doctors submitted by PGI, pursuant to motion of this bench, is on the record. The report of Board of Directors of the doctors, which was constituted by orders of the Senior Administrative Officer at PGI on 3.03.2010 has been received by us on the record. The Board of Expert of doctors of premier Institute of Medical and Research Centre PGI Chandigarh made it clear that Dr. J.S. Chahal is qualified Surgeon, who holds degree in MBBS and M.S (Surgery). Anyone with M.S Surgery Degree is competent to operate upon for a post-operative collection as in this case. The board of expert doctors has opined that patient developed septicemia and collection in post operative period at Chahal Hospital. Such complications can occur after any surgery, even in the most expert hands. Dr. J.S. Chahal initially tried to manage the patient, when patient did not improve and she was referred to tertiary center/higher centre at DMC. The referral included proper discharge slip with relevant clinical details. Patient recovered in due course of time at DMC. Any residual disability in the form of kidney failure or neurological damage is not mentioned in the available records, as disclosed by the expert report. The board of doctors gave the opinion that there is no substantial evidence to deduce the complications due to medical negligence, which occurred in this case. We are guided by the report of the expert doctors, which is part of the record, which is called by this Commission during the pendency of the complaint in deciding this case. The report given by expert doctors dated 20.03.2010 has not found any medical negligence in this case on the part of OP. Undoubtedly,  it is for the complainant to prove medical negligence on the part of the OP. The initial evidence of the complainant by means of her affidavit stood rebutted by the counter evidence of the OP and more particularly by the report of the expert board of doctors, which found no substantial evidence of any medical negligence on the part of OP in this case. We are guided by report of expert of doctors in this case on the file. The counsel for the complainant referred to law laid down by Hon'ble National Commission in  "Antony Hospital Vs. C.L Dsilva, reported in 2013(2) CPJ (N.C)" page-329 that death due to septicemia leading to multi-organ failure - deficiency in service. We find that facts of the cited authority are distinguishable from the facts of the case in hand. The facts of both the cases cannot be said to be pari materia. Similarly, reference was made to law laid down by Hon'ble National Commission in "Amita Srivastava  Vs. Poonam Devi, reported in 2012(3) CPJ (N.C) Page 32" to the effect that damage to vein and resultant septicemia leading to development of gangrene and eventual amputation of complainant's right forearm caused by negligence in process of intravenous transfusion of saline and blood administered to complainant during her treatment. Order granting compensation was affirmed. This authority is again found to be distinguishable from the facts of the case in hand. Herein, the doctor is a qualified surgeon, who conducted the operation on complainant and followed the standard medical treatment duly recognized by medical literature to cure the complainant. The complications are accompanying part of any operation/surgery and they could occur to any person at any time. A Surgeon never undertakes to cure a person and he can exercise his best care for the welfare of the patient and he cannot guarantee the hassle-free system to the complainant. We find that there is no evidence of any damage to kidney or Neurological system of the complainant, as per report of the experts given by the PGI doctors on the record.

7.      In view of the our above-referred findings, we find that OP followed the Standard Medical Treatment for treating the complainant and Dr. J.S Chahal is a qualified surgeon. There is no deviation from Medical Standard Practice by Dr. J.S. Chahal who  is a qualified Surgeon. There is no evidence of any damage to the kidney or Neurological system of the complainant  proved on the record. Consequently, when Standard Medical Treatment has been followed by the OP to take care of the complainant, the complainant has to give specific instances of act of omission and commission on the part of the OPs in constituting any medical negligence by OP. Every surgical operation is attended by the risk, we cannot take benefit without taking risk. Every advance technology is replete with risks. Dr. J.S. Chahal on the basis of radiologist's report conducted surgery on the infected part only as per medical standard practice. The law laid down by the Hon'ble Supreme Court in "Kusum Sharma and others Vs. Batra Hospital and Medical Research Centre and others, reported in 2010(3) Supreme Court Cases Page 480"    is to the effect, to prove medical negligence of the treating doctors, the complainant has to prove facta probanda as well as facta provantia. Negligence is an omission to perform the duty enjoined on a person by law. The essential components of negligence are three: 'duty' 'breach' and 'resulting damage'. The complainant could not establish, as to on what point, OP was negligent and on what point OP deviated from the Standard Medical Practice in treating the complainant. The board of doctors of PGI exonerated the OP from any medical negligence in this case and we are bound by that, as there is no evidence to the contrary to rebut it.

8.      In the light of our above discussion, we hold that no negligence on the part of OP has been established on the record by the complainant in this case. The complaint of the complainant  is accordingly dismissed with no order as to costs.

9.       Arguments in this complaint were heard on  03.06.2015 and the order was reserved. Now the order be communicated to the parties.

10.    The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

                                                                   (VINOD KUMAR GUPTA)

                                                                             MEMBER

                       

                                                               (HARCHARAN SINGH GURAM)

                                                                                MEMBER

 

June 6 2015.                                                                  

(ravi)