THIS IS THE CASE OF THE YEAR 2011 PENDING BEFORE THIS FORUM.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/156/2011
No. DF/ Central/ Date
- Sh. Arun Rishi, S/o Lt. Sh.W.R. Rishi (died during the pendency of the case)
- Sh. Vansh Rishi, S/o Lt. Sh. Arun Rishi
Both R/o 7/1, 1st Floor,
Old Rajinder Nagar, New Delhi-110060
- Smt. Monika Sharma, W/o Sh. Rajinder Sharma
R/o DG-II, 78/B, Vikas Puri,
Delhi-110018 …..COMPLAINANTS
VERSUS
- City Hospital
B-1/1, Near Pusa Road,
New Delhi-110060
- Dr. R. Sarangi
C/o City Hospital,
B-1/1, Near Pusa Road,
New Delhi-110060
- Dr. B.B. Aggarwal
C/o City Hospital,
B-1/1, Near Pusa Road,
New Delhi-110060
- Dr. Vishal Saggar
C/o City Hospital,
B-1/1, Near Pusa Road,
New Delhi-110060
- Jeewan Mala Hospital
66-A/2, New Rohtak Road,
New Delhi-110005
- Dr. J.P.S. Deed
C/o Jeewan Mala Hospital
66-A/2, New Rohtak Road,
New Delhi-110005
- Dr. Ajay Chauhan
C/o Jeewan Mala Hospital
66-A/2, New Rohtak Road,
New Delhi-110005 …..OPPOSITE PARTIES
Quorum : Ms. Rekha Rani, President
Ms. Manju Bala Sharma, Member
Mr. R.S. Nagar, Member
ORDER
Ms. Rekha Rani, President
Sh. Arun Rishi (in short the complainant) filed instant complaint on 29.08.2011 against City Hospital as OP1 and its doctors who are OP2 to OP4; against Jeewan Mala Hospital as OP5 and its doctors as OP6 and OP7 alleging that Geeta Rishi (in short the patient) his wife had pain in abdomen in March-April, 2009. Complainant consulted Dr. R. Sarangi (OP2) who diagnosed Gastritis (Gall Bladder inflammation) and prescribed medicines. The medicines were taken regularly but the pain continued. On 08.04.2009, complainant took the patient to OPD Sir Ganga Ram Hospital. OP2 advised the patient to be admitted in City Hospital (OP1) which is affiliated to Sir Ganga Ram Hospital on 22.04.2009 for gall bladder operation. On 09.04.2009 the patient had severe pain in her abdomen. She was taken to OP2 who advised her medicines and to get TSH (Thyroid) test done. On 22.04.2009 on advice of OP2, patient was admitted in City Hospital where she was operated on 23.04.2009 by a team of doctors (OP2 to 4) for Laparoscopic Cholecystectomy (Laparoscopic Gall Bladder removal). She was discharged on 25.04.2009 and review was advised after a week. The patient did not show any sign of improvement. She did not get any relief from pain. Therefore she was taken to OP2 on 30.04.2009. He advised X-ray chest and spine and some medicines. There was no relief from pain so the patient again visited OP2 on 05.05.2009. The report of the X-ray was normal. When the patient had continuous pain she was again admitted in OP1 hospital on 11.07.2009 and CT Scan of the whole abdomen was done which reported enhancement of Herniated Omentum, OP1 to OP4 insisted on surgery of Hernia but having no faith and confidence in treatment administered by them, complainant requested for her discharge on 12.07.2009.
Patient was taken to Jeewan Mala Hospital (OP5) on 14.07.2009 for second opinion. She was examined by OP6 and OP7 who advised immediate surgery which was stated to be necessary for saving her life. After conducting various tests patient was admitted in OP5 hospital on 14.07.2009 where risky surgery of umbilical hernia repair and sub hepatic, pelvic was done. Patient was discharged on 21.08.2009. After conducting the said operation OP6 and OP7 asked the complainant to show the record of previous surgery and the biopsy report when complainant for the first time came to know that some biopsy test was also done after first surgery. Complainant collected the biopsy report from Sir Ganga Ram Hospital and was surprised to know that the patient had infiltrating tumour/cancer in the Gall Bladder. He also came to know that the biopsy report had already been sent to City Hospital on 28.04.2009.
OP1 to OP4 are stated to be negligent in concealing the biopsy report of the patient. It is stated that if the doctors had gone through the report earlier the disease would have been diagnosed properly at the initial stage and the same could have been controlled and cured.
Further it is stated thereafter complainant contacted Dr. R.N. Saini of BLK Memorial Hospital on 01.08.2009who advised radio/chemo therapy but warned that there could only be 10-15% chances of success of the treatment as the patient was at that time on advanced stage of cancer. Complainant has sought compensation of Rs. 15,00,000/- for loss of human life caused due to medical negligence on part of the OPs with 18% interest, medical and litigation expenses.
Notice of the instant complaint was issued to the OPs who appeared and filed written statements. OP1 has stated that patient was admitted to their hospital with complaint of right upper abdominal spasmodic pain occasionally associated with vomiting for the last one and a half month. The patient was a known case of diabetes mellitus and hypothyroidism for the last one and a half year and was on oral medication. It was stated that she was admitted with a diagnosis of cholecystitis and cholellthiasis (gall bladder infection with gall bladder stones).The patient had pain in abdomen in the evening on the day of admission for which injectable pain killer was given. She was operated on 23.04.2009, Laparoscopic cholecystectomy was done. The gall bladder had all the features of infection with the pus inside the gall bladder. On 24.04.2009, except pain at the operation site, the patient was comfortable and took normal diet. She was discharged on 25.04.2009 with a stable condition, with advice to take antibiotics, analgesics, anti-diabetic drugs and Eltroxin for hypothyroidism (less functioning of thyroid gland). It is, as such submitted that the patient was given appropriate treatment and there is no deficiency in service or any negligence.
OP1 in its reply stated that the patient had undergone CT Scan report in OP1 hospital on 11.07.2009. It is stated that biopsy report of the patient was required to be collected by her attendants and the same was in fact subsequently collected by them. It is stated that subsequent to the said investigation by having conducted the CT Scan, the patient was evaluated for surgery of obstructed umbilical hernia. The cardiologist opinion was obtained for ECG changes and the cardiologist advised dobutamine stress echo. However, the patient did not wish to undergo the operation at OP1 hospital and at the request of the attendants, she was discharged on 12.07.2009. It is denied that the patient had cancer in gall bladder due to infection while performing laparoscopic gall bladder removal operation.
OP2 also filed his separate reply denying any medical negligence on his part in treatment of the patient.
OP4 filed a separate reply inter-alia submitting that patient was undergoing treatment under OP2 so OP4 is not aware of the allegations made by the complainant.
Jeewan Mala Hospital, OP5 to OP7 filed a common reply. It is stated therein that patient had come to their hospital with pain and swelling over Umbilical area for 15 days on 14.07.2009. OPs diagnosed her with ‘obstructed Para Umbilical Hernia’ and she was advised to undergo surgery as her condition was serious due to obstructed position of Hernia. It is also submitted that surgery was performed to manage the hernia conditions of the patient as it was a threat to her life. It is further stated that the doctors had discovered multiple hard nodules over omentum, and mucoid free fluid during surgery which made the doctors suspicious about the medical history of the patient and accordingly the doctors asked the complainant about histopathology report and it is only after persuing the same OP6 and OP7 realized that patient was suffering from cancer in gall bladder. Parties have filed evidence by way of affidavits. We have heard Sh. Manish Mouni, counsel for complainant, Sh. Kunal Kher, counsel for OP1 to OP4 and Sh. Varun Aggarwal, counsel for OP5 to OP7.
During pendency of the complaint, the complainant, Sh. Arun Rishi died. Although the complaint is stated to have been filed by Arun Rishi, the husband of the patient and her children but the complaint was signed only by Arun Rishi, the husband of the patient and not her children. After death of Arun Rishi, the children of Arun Rishi and Geeta Rishi filed an application under Section 151CPC stating therein that Arun Rishi expired on 31.08.2018 and there is no other surviving legal heir of Arun Rishi and Geeta Rishi except Vansh Rishi and Monika Sharma who may be allowed to continue the instant complaint. The application for bringing on record the two children of Arun Rishi and Geeta Rishi was strongly opposed by OPs.
The original complaint was filed by Arun Rishi who was the husband of the patient and their two children. Since the complaint was not signed by the children of the patient, the necessity arose for their formal impleadment after death of Arun Rishi. He died on 31.08.2018 and the application for impleadment was filed on 04.12.2018 with a slight delay. In the interest of justice, the application is allowed. Vansh Rishi and Monika Sharma are allowed to pursue the complaint.
The complaint is resisted by the OPs as barred by limitation. ‘Section 24(A) of the Consumer Protection Act, 1986 deals with the limitation period for filing the consumer complaint and it reads as under:
“24A. Limitation period.—
(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.”
On bare perusal of the above, it is clear that limitation for filing the consumer complaint in a consumer forum is two years from the date on which cause of action has arisen. Sub section 2 of Section 24(A) confers power upon the consumer forum to condone the delay in filing of the consumer complaint provided a sufficient cause has been shown for not filing the complaint within the period of limitation.’
In Para 16 of the complaint it is alleged that complainant came to know for the first time about the biopsy report only after the surgery for umbilical hernia repair was conducted on 15.07.2009. The patient died on 31.08.2009. Learned counsel for the OPs submitted that the complainants with a view to hide delay in filing of the instant complaint have not disclosed as to when exactly they came to know about the biopsy report. They have mentioned any date in Para 16 of the complaint nor in Para 18 of the complaint they have not mentioned any date when they collected the biopsy report. It is further stated that since the complaint was filed on 21.09.2011, the same is barred by limitation.
It is true that complainants have not anywhere mentioned the date when they came to know about the import of the biopsy report.
In Para 21 of the complaint it is alleged that they contacted Dr. R.N. Saini of BLK Memorial Hospital on 01.08.2009 and came to know that the patient was in advanced stage of cancer and there were only 10-15% chances of her survival. So at this stage as per complainant’s own case they had come to know what exactly biopsy report was. Cause of action therefore arose on 01.08.2009 and the complaint could have been filed within two years thereof. It was filed on 29.08.2011. Hence there is a delay of only few days which in the interests of justice needs to be condoned under sub section 2 of Section 24A of the Act.
Learned counsel for complainant argued that OP2 had conducted laparoscopic gall bladder removal and it is OP2 who after the operation had referred gall bladder tissue for biopsy and it is OP2 who failed to take note of the biopsy report on 30.04.2009, when seeing no sign of improvement the complainant took the patient to OP2 who after reviewing assured the complainant that the pain in abdomen will subside with medicines prescribed by him and advised to get X-Ray of chest and spine. Annexure P-14 available at Page 37 of the case file is the biopsy report which reads that it was referred by City Hospital and the report was received on 24.04.2009. After the first surgery conducted by OP2 biopsy of the gall bladder was conducted which shows that the patient was suffering from Gall Bladder: Adenocarcinoma(pT2 pNx pMx). OP2 had conducted the surgery of the gall bladder. He only referred gall bladder biopsy to be conducted so it was mandatory on his part to see the biopsy report before advising the patient a second surgery. The patient had come to OP2 on 30.04.2009 and 05.05.2009. On both the occasions OP2 did not bother to ensure that biopsy report is made available to him and he ought to have looked at it before prescribing unnecessary X-Ray and other medicines. OP2 is therefore guilty of negligence in having failed to refer to biopsy report on 30.04.2009 and 05.05.2009 by which time the biopsy report had become available. It was OP2 who conducted the laparoscopy gall bladder removal and had also sent gall bladder for biopsy. Therefore he ought to have realized that biopsy report was very important for further treatment of the patient. OP2 is therefore held guilty of medical negligence as he was the treating surgeon.
Now coming to the role of OP5 to OP7, it is alleged by the complainants that as they did not have faith and confidence in the treatment administered by OP1 to OP4, they had taken the patient to OP5 Hospital where she was examined by OP6 and OP7 who advised immediate surgery for umbilical hernia to save her life.
Learned counsel for complainants submitted that had OP6 and OP7 bothered to refer to the biopsy report they would not have gone ahead with surgery for umbilical hernia and the line of treatment would have been radio/chemo therapy.
Per contra, learned counsel for OP5 to OP7 submitted that attendants of the patient did not inform OP6 and OP7 about the biopsy report and further that there was no indication that the patient had gall bladder cancer. He argued that OP6 and OP7 came to know about the biopsy report only after conducting the umbilical hernia surgery. It is further submitted that the doctors of Jeewan Mala Hospital found multiple hard nodules over omentum, and mucoid free fluid during surgery which made the doctors trace the histopathology report of the previous surgery done in April 2009 at another hospital. Only at this stage, the hospital came to know from the histopathology report of the gall bladder which revealed that patient was suffering from cancer in gall bladder.
OP6 and OP7 proceeded with the diagnosis and treatment of the patient on the basis of the diagnosis and line of treatment as prescribed by OP2 who had conducted gall bladder removal surgery and had later on advised umbilical hernia surgery. It is not the complainant’s case that they had made the biopsy report available to OP6 and OP7at the time the patient was taken to them. There is nothing on record to show that there was any indication or occasion for OP6 and OP7 to call for biopsy report before the surgery.
It is OP2 who conducted the first surgery on 23.04.2009. It is OP2 who had referred for biopsy. It is therefore absolutely necessary that he should have insisted upon biopsy report before going ahead with further treatment of the patient. His failure to insist upon availability of biopsy report before undertaking further treatment of the patient was sheer negligence which caused immense loss to the complainant.
OP2 is therefore held guilty of deficiency in service for having been negligent in diagnosis and treatment of the patient and is accordingly directed to pay to the complaints a sum of Rs. 17,00,000/- which is inclusive of litigation and medical expenses. The above said amount shall be paid within 30 days from the date of order failing which 7% interest per annum shall be payable from the date of order till the date of payment. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced on Day of 2019.
