Before the District Consumer Disputes Redressal Commission, Rohtak.
Consumer Complaint No. 06
Instituted on: 03.01.2019
Decided on:29.11.2024.
S.S. Khurana S/o Sh. Ram ParkashKhurana R/o Jagdish Colony, Rohtak
….Complainant
Vs
- Chaudhary Maternity & Surgical Hospital, SCF 2 & 3, HUDA Complex, opposite Palika Bazar, Rohtak through Dr. R.K. Chaudhary-Surgeon.
- United India Insurance Co. Ltd., Branch Office at 080102, 16-M,Goal Market, Mahanagar, Lucknow (UP), service be affected through its Divisional Manager, Jawahar Market, Model Town, Rohtak.
……Opposite Parties
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT, 1986.
BEFORE: SH. NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR.VIJENDER SINGH, MEMBER.
Present: Sh. Gaurav Khurana, Advocate for complainant.
Sh. H.C Sikri, Adv. for the opposite party no.1.
Sh. Gulshan Chawla, Adv. for the opposite party no.2.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the present complaint, according to the complainant, are that he had visited the opposite party with complaint of liver disease, had jaundice two years back and depression history of pain on the upper side of abdomen from last one and half month. Upon this, ultrasound of the abdomen was done on 02.07.2018 and as per report, there was a thick walled gallbladder and multiple clots of 4-6 mm size. The complainant was got admitted in the hospital of the opposite party on 03.07.2018 and operation of the complainant was done by the opposite party on 05.07.2018 and gall bladder was removed. The complainant asserted that the operation of removing the stone from the gall bladder was done negligently by the opposite party as during the operation, bile of complainant was cut. That due to this negligent act of the opposite party and due to cut on the bile, leakage was started and fluid was collected in the body but despite knowing this fact, the opposite party did not repair the bile or did not give any treatment regarding repairing of the bile and even not referred the complainant to another hospital regarding treatment of the bile leakage and discharged the complainant from the hospital on 14.07.2018. After that, as the complainant that suffering from breath problem, he got the treatment from Sir Ganga Ram Hospital and the complainant came out from the mouth the death due to the negligent act of the opposite party and he had to spend Rs. 15,00,000/- for treatment in Sir Ganga Ram Hospital. Hence, by alleging negligence and deficiency in service on the part of the opposite party, the complainant seeks directions against the opposite party to pay compensation amount of Rs. 15,00,000/- alongwith interest on account of expenditure incurred by him in Sir Ganga Ram Hospital, compensation of Rs.4,00,000/- with interest on account of mental pain agony etc. and Rs.11,000/- as litigation expenses besides any other relief, which this Commission may found deem fit and proper.
2. Notice of the present complaint was issued to the opposite parties. Opposite party no.1 in its written statement, has admitted the fact that the complainant had complaint of Chronic Liver Disease and had Jaundice two years back. He came to the opposite party on 02.07.2018 with history of pain in upper abdomen for one and half month and had increased pain for two days. He was advised ultrasound of abdomen on 02.07.2018 and as per the ultrasound report, there was thick walled gallbladder and multiple calculi in the gallbladder. The complainant had undergone Right Inguinal Hernia Surgery one and half month back and had history of Umblical Hernia Surgery three years back. The opposite party denied that there were multiple clots of 4-6 mm size as alleged. TLC and DLC were raised, and liver function tests were marginally deranged. The complainant was admitted to the hospital on 03.07.2018 and on 05.07.2018, the gallbladder surgery was performed. The surgery revealed empyema (pus-filled) gallbladder with thick walls and inflammation. 30 stones were removed from the gallbladder and a drain (ADK No. 24) was placed at the operation site. After few hours of surgery, the complainant experienced respiratory problems. The nebulization was started and in post operative period, the fluid continuously came out of the drain and after 4 days of putting drains, the complainant was reasonably well and on request of complainant, he was discharged on 14.07.2018. It has been denied by the opposite party that during the operation, the opposite party became negligent and bile of complainant was cut by the opposite party as alleged. It has been also denied that the opposite party did not repair the bile as alleged or that did not give any treatment regarding repairing of the bile and even not referred the complainant to another hospital regarding treatment of the bile leakage. It has also been denied that the complainant came out from the mouth of death due to negligent act of the opposite party, had to go to many surgeries in Sir Ganga Ram Hospital and had to spend Rs.15,00,000/- for treatment there. Complainant is not entitled to any amount of compensation from the opposite party. However, the answering opposite party is duly insured with UIIC (United India Insurance Company Limited) vide policy no. 0801022717P106833635 valid from 04.08.2017 to 03.08.2018 and if Hon’ble Commission comes to any conclusion, then the insurer UIIC will indemnify on behalf of the answering opposite party.
3. Opposite party no. 2 United India Insurance Company Ltd. in its reply has submitted that the complaint against them is meritless, frivolous and intended to harass. It is further submitted that there is no deficiency in service or unfair trade practice on their part and thus, the Commission lacks the jurisdiction to adjudicate the case and the complaint should be dismissed at the preliminary stage as it lacks a valid cause of action and abuses the legal process. On merits of the case, it is contented that the insurance company was not informed about the alleged negligence of the Dr. Ravinder Chaudhary. Dr. Chaudhary was insured under a professional indemnity policy for Rs.10,00,000/- which covers claims for bodily injury or death due to negligence. However, the claims must be reported immediately, which was not done in this case, violating policy condition. The policy was issued in the name of Dr. Chaudhary and not in the name of ChaudharyMaternityHospital where the complainant was treated. Hence, the insurance company is not liable to indemnify the hospital. The opposite party also deny allegations of harassment or humiliation caused by Dr. Chaudhary or the insurance company and further that expenditure of Rs.15,00,000/- incurred on treatment at Dr. Chaudhary’s Hospital and SirGangaRamHospital. It is also submitted that the complainant is not entitled for any relief and hence, prayed for dismissal of the complaint requesting imposing of heavy cost upon the complainant.
3. Learned counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A and documents Ex.C-1 to Ex.C-119 and closed his evidence on 24.04.2024.On the other hand, the learned counsel for opposite party No. 1 tendered in his evidence affidavits Ex.RW1/A & Ex. RW2/A1 and documents Ex.RW1/B to Ex.RW1/E and Ex RW2/B to Ex. RW2/D and closed his evidence on 20.11.2023. Learned counsel for opposite party no.2 has also tendered in his evidence affidavit Ex.RW2/A and document Ex.R2/1 and closed his evidence on 11.10.2023.
4. We have heard the arguments of learned counsel for the parties, perused the documents placed on record and have gone through material aspects of the case very carefully.
5. The main contention of the complainant is that the treating doctor was negligent at the time of operation because during the operation of removing the stone of gall bladder, the treating doctor negligently cut the bile duct of the complainant. The main deficiency of the treating doctor is that if the bile duct has been cut, in that situation he should notice that something wrong has been happened during the operation but the treating doctor was negligent and it came into the notice on 4th day of operation, when complainant feel abdomen discomfort and a sign of sephicaenia. Thereafter, on fifth day of the operation lap explorating done and the treating doctor found that there were billions of fluid collected on right paracotic gutter and subhep space. The opposite party also found that there was small gut loops dialated all over and previous drain tube present in sub heparic space but wrapped in movement. The opposite party done bilary fluid evacuated, adhesive and one sub hepatic drain(ADK-28) and one pelvic drain(adk-24) put.To prove his case, complainant has placed on record discharge slip Ex.C3 and hospital bills of Sir Ganga Ram Hospital & medicines bills etc. Ex.C4 to Ex.119. In the present case, the question of medical negligence is involved. So this Commission vide its letter dated 03.06.2024 directed the CMO Rohtak to constitute a board of doctors to establish that whether there was negligence on the part of opposite party no.1 during the operation of removing the stone from gallbladder of complainant, due to which during the operation, bileduct of the complainant was cut by the opposite party which created infection. It was further directed to establish the reason that why the complication occurred to the complainant after the operation of gallbladder stone.
6. We have minutely perused the report placed on record by the Civil Surgeon Rohtak dated 02.08.2024. After receiving the letter dated 03.06.2024, the CMO Rohtak constituted a medical board and the report has been submitted by the Civil Surgeon with this Commission on 02.08.2024. The main contention of the enquiry report is as under :-
“Members of the board discussed in detail all the relevant documents on record provided by the complainant and the respondent doctor. The patient Sh.S.S.Khurana was admitted on dated 03.07.2018 with marked pain abdomen, he was investigated and found to be suffering from gall bladder Calculous with inflammation of gall bladder(chronic cholelithiasis with acute cholecystitis. During first 3 days after operation patient had few complications like difficulty in respiration, distension and pain abdomen. On 4th postoperative day it was found that the drain put in the abdomen was blocked. USG abdomen revealed collection in peritoneal cavity. On 5th postoperative day laparoscopic abdominal re-exploration was done. Collected biliary fluid was evacuated. Two more drains were placed. After this patient was treated according to the status of the patient. Patient was discharged on dated 14.07.2018. After taking into all the documents on record and the opinions of experts, the members of board are of the opinion that the treatment given by the treating surgeon was as per protocol. There is no negligence in the treatment.”
The above report reveals that the board has only described the treatment but they remained silent about the negligence of the doctor at the time of operation that what happened during the operation and whether the bile duct was cut at the time of operation of complainant or not. Any specific answer to the question that : “whether there was negligence on the part of opposite party no.1 during the operation of removing the stone from gallbladder of complainant, due to which during the operation, bileduct of the complainant was cut by the opposite party” has not been given by the medical board. No doubt, the prescribed treatment was given by the doctor but the main contention of the complainant is that there is negligence on the part of treating doctor and he cut the bile duct of the complainant during the operation. On this point, the board has not given any opinion that whether the bile duct was cut negligently by the treating doctor.
7. We have perused the other documents placed on record by the complainant. As per CT report dated 24.07.2018 placed on record as Ex.C1, it is submitted that “Patient is a post operative case of laparoscopic cholecystectomy followed by bile duct injury. Now patient present with pain abdomen and fever”. We have also perused the ERCP-Report Ex.C115 issued by Department of Gastroenterology, Sir Gangaram Hospital, Rajinder Nager, New Delhi-110060 and as per findings given in this report it is mentioned that : “Case of post cholecystectomt bile leak., Papillary orifice is normal., Selective cannulation of CBD done., Cholangiogram revealed complete cut off at the level of cholecystectomy site and guide wire could not be negotiated into biliary radicles despite repeated attempts. After this report, the patient was admitted in Sir Ganga Ram Hospital on 22.07.2018, which is evident from the discharge summary Ex.C117 of Surgical Gastroenterology & Liver Transplantation Sir Ganga Ram Hospital, Rajinder Nagar, New Delhi-110060. Perusal of this discharge summary shows that patient was admitted in this hospital on 22.07.2018 and was discharged on 18.08.2018 and the diagnosis was : “Post laparoscopic cholecystectomy ? f/c/o CLD(Child b) s/p biliary tract injury Vascular injury ? liver injury”. From all the documents placed on record, it is observed that this is a case of ‘complete CBD cut off’ at the time of performing operation of gallbladder by the opposite party No.1. No doubt, as per the enquiry report issued by the board of doctors of Civil Hospital, Rohtak, the treatment given by the treating surgeon i.e. opposite party No.1 to the complainant was as per protocols. No doubt, there is no deficiency in service on the part of treating doctor, but somehow, there is omission or error on the part of doctor(respondent no.1), due to which the bile duct of the complainant had cut off and he had to take further treatment from Sir Ganga Ram Hospital and spent a huge amount on his treatment beside the expenses incurred by him at the hospital of opposite party Hence opposite party no.1 is liable for the alleged act of omission and error. However, the law relied upon by ld. counsel for the complainant i.e. Mumtaj Ansari Vs. Zubeda of Hon’ble Uttarakhand State Commission, Dehradun in Appeal No.273 of 2004 andSmt. Gurmit Mahal Vs. Chauhan Nursing Home Private Limited and Another of Hon’ble Punjab State Commission, Chandigarh in Complaint No.19 of 1997, are not fully applicable on the facts and circumstances of the case.
8. We have also perused that the opposite party no.1 is duly insured with UIIC (United India Insurance Company Limited) opposite party No.2 vide policy no. 0801022717P106833635 valid from 04.08.2017 to 03.08.2018, which is placed on record as Ex.R2/1. We have also perused the terms and conditions of this policy. As per Indemnity clause of this policy mentioned at Sr. no.2, it is submitted that : “The indemnity applies only to claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused error, omission or negligence in professional service rendered or which should have been rendered by the insured OR qualified assistants named in the schedule or any nurse or technician employed by the Insured(hereinafter referred to as the ‘Act’).” Hence the act of omission on the part of opposite party no.1 covers under the policy and opposite party no.2 is liable to compensate the complainant on behalf of the opposite party No.1.As per the documents placed on record, initially the patient was admitted in the hospital of opposite party from 03.07.2018 to 14.07.2018 and thereafter he remained admitted in Sir Ganga Ram City Hospital w.e.f. 18.07.2018 to 21.08.18, Sir Ganga Ram Hospital w.e.f. 22.07.2018 to 01.08.2018. Sir Ganga Ram City Hospital w.e.f. 01.08.2018 to 18.08.2018 and finally remained admitted there w.e.f. 26.08.2018 to 13.09.2018. He spent more than Rs.10 lakhs on his treatment. As the policy Ex.R2/1, the insurance cover is only for 1000000/-. Hence the complainant is entitled for only Rs.10 lakhs from the opposite party no.2.
9. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite party No.2 to pay a compensation of Rs.1000000/-(Rupees ten lakhs only) to the complainant within 45 days from the decision, failing which opposite party no.2 shall be liable to pay interest @ 9% p.a. on the alleged amount of Rs.1000000/-(Rupees ten lakhs only) from the date of decision i.e. 29.11.2024 till its realisation to the complainant.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
29.11.2024.
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Nagender Singh Kadian, President
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TriptiPannu, Member.
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Vijender Singh, Member
