Haryana

Ambala

CC/15/141

Neelam Rani - Complainant(s)

Versus

Doctor Sanjay Aggarwal - Opp.Party(s)

B.S.Jaspal

18 Dec 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

            Complaint Case No.      : 141 of 2015.

Date of Institution         : 21.05.2015.

            Date of Decision            : 18.12.2017

 

Neelam Rani deceased through

1.Jaspal Singh son of Des Raj (Husband)

2.Vashali daughter of deceased

3.Sarabjit Singh minor son of deceased

residents of H.No.52-C, Police Line, Ambala City.

 

……Complainant.

Versus

1. Dr.Sanjay Aggarwal
2. The New India Assurance Company Limited at Civil Lines, Arya Chowk, above O.B.C.Bank Ambala City.

                                                                   ……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act

 

BEFORE:   SH. D.N. ARORA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

                   MS. ANAMIKA GUPTA, MEMBER.

                  

Present:       Sh. B.S.Jaspal, counsel for complainant.

                   Sh. Satinder Garg, counsel for OP No.1.

                   Sh. Nikhilesh Bhagi, counsel for OP No.2.  

 

ORDER

 

                   Brief facts of the present complaint are that the complainant (since deceased) was suffering from left lower abdomen pain and vomiting, therefore, she had visited Dr.Umesh Mehta on 07.06.2013 who prescribed some medicines.  Since the complainant did not feel any relief, therefore, she visited the hospital of Op No.1 on the same day where after examination the doctor told that the complainant was suffering from choleithiasis with anemia. As per blood test report the hemoglobin of the complainant was 4.9 gm TLC-5700 cumm etc. and she was advised for operation Laparoscopic cholecystectomy and same would be done with blood transfusion. On  07.06.2013, the complainant was admitted in the hospital  and Rs.20,000/- were also deposited. On 08.06.2013, Rs.10,000/- were also deposited with OP No.1 as surgery charges and the operation for Laparoscopic Cholecystectomy was also done on her person on 10.06.2013. The complainant remained admitted in the hospital of the Op No.1 till 13.06.2013 where three bottles of “O” positive blood were transfused as she was having severe anemia and as per report dated 08.06.2013 the hemoglobin of the patient was 5.5 gm. The complainant again deposited Rs.20,000/- with OP No.1 on 13.06.2013. After discharge she was advised for oral medicines for five days and thereafter when she visited the OP No.1 then it was told that the pain would subside within due course of time. On 06.07.2013 she again visited OP No.1 as pain was not relieved but the doctor again prescribed some medicines. When the pain continued then she again visited the OP No.1 on 13.07.2013 but on his advice ultrasound was gone done from Aggarwal Ultrasound Centre which shows Bowel Thickening in left lilac Fossa, B/L Renal Calculi and Fibroid uterus.  Due to severe pain, constipation and agony she visited other hospital i.e. Jaspal Hospital on 14.07.2013 where on the reference of the doctor CT scan of the abdomen was got done from Rajeev CT Scan  and it was found obstructive Gut Pathology with thick walled segment in LIF Sigmoid Colon and advised colonoscopy. On 29.07.2013 complainant got colonoscopy done from Dr.Umesh Mehta and her multiple biopsy was sent for HPE to Lal Pathology Lab but it came to know that she was suffering from Cancer of sigmoid colon. She was operated in Jaspal hospital for Cancer of sigmoid colon and Hartman’s with colostomy was done on 20.09.2013 and the complainant is taking chemotherapy till now. She had appeared before medical board and a certificate regarding chronic disease was also issued to her. The Op No.1 misguided her and conducted operation in order to extract money despite the fact that she was already suffered from cancer of sigmoid colon.  The act and conduct of the Op No.1 clearly amounts to deficiency in service. In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C24.

2.                          Upon notice OPs appeared and contested the complaint by filing separate replies. OP No.1 in its reply has submitted that there is no deficiency in service on its part as the complainant has failed to explain as to how the OP No/1-doctor was negligent.  The patient was admitted in the hospital with pain in epigastrium and excessive bleeding per vaginum for 2 years. USG showed only acute cholecystitis with cholelithiasis with fibroid uterus. Blood transfusion was advised for low Hemoglobin and Laparoscopic Cholecystectomy was done with utmost due care and prudently on 10.06.2013. The patient was discharged on 12.06.2013 in stable condition. At the time of surgery there was no evidence of thickening of sigmoid colon and only Rs.17,000/- were charged for the operation. On 18.06.2013 the patient came with new complaints of pain in left lower abdomen which was not connected to pain in epigastrium. She visited OP No.1  2/3 times in next month therefore USG was got done which showed new problem of thickening of sigmoid colon. She was referred to PGI, Chandigarh but she landed to some to her hospital. There was no negligence on the part of Op No.1. Other contentions made in the complaint have been controverted and prayer for dismissal of the complaint has been made.

                             OP No.2 in its reply has taken preliminary objections such as maintainability, concealment of material facts and estoppal etc. The Op No.1 had examined the patient besides other investigations which shows that all possible medical care and treatment was given to her.  The complainant was admitted in the hospital after discussing the whole case as she was having pain of epigastrium and excessive bleeding. The Laparoscopic cholecystectomy was done with diligently, prudently with utmost care and the patient was discharged in good condition. The doctor had given standard treatment to the patient. She again visited OP No.1 on 18.06.2013 with new complaint of pain in left lower abdomen.   She was advised ultrasound which was got done on 13.07.2013 but when new problem came then the she was referred to PGI, Chandigarh for further investigation and management.  No mental stress was caused by the doctor to the complainant.  The OP No.1 has obtained error and omission policy subject to its exclusion clauses but the OP no.2 is not liable to indemnify any fraudulent act. Other contentions made in the complaint have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavits Annexure RA, Annexure RX and documents Annexure R1 to Annexure R3.

3.                          We have heard learned counsel for the parties besides going through the material available on the case file very carefully.

4.                          In the present case main complaint of the complainant is that she was suffering with pain left lower abdomen, constipation and vomiting for which she visited Dr.Umesh Mehta hospital where she was examined and advised for ultrasound of abdomen and cholelithiasis as per annexure C2 issued by him and subsequently patient visited OP No.1 who got done some blood tests like Hemoglobin, TLC, blood urea and blood sugar (Annexure C3).  Her Hemoglobin was much below than the normal level as it was only 4.9 gm and her TLC and DLC were within normal range and finally diagnosed as a case of acute cholelithiasis with fibroid uterus as per prescription/treatment record dated 07.06.2013 produced by OP No.1 but no ultrasound report on the file and the treating doctor operated gall bladder surgery after giving blood transfusion without finding other cause of pain. The patient was discharged on 13.06.2015 but patient did not improve as the pain, vomiting, distension of abdomen were not relieved. After surgery she had been visiting the treating doctor regularly for about one month but inspite of that there was no symptom of improvement was found and her condition got deteriorated as she developed constipation, vomiting and distension of abdomen and she was advised to undergo USG abdomen. As per the USG report Annexure C8 dated 13.07.2013 the patient was found to be suffered with Bowel Thickening in left lilac Fossa, B/L Renal Calculi and Fibroid uterus  and gall bladder not visualized (status post operated). Since the patient felt continue pain and constipation and she consulted Dr.Jaspal on 14.07.2013 and after examination he advised the patient for CT scan of the abdomen  and the same was got done from Rajeev CT Scan  and it was found obstructive Gut Pathology with thick walled segment in LIF Sigmoid Colon and advised colonoscopy.  As per colonoscopy report dated 29.07.2013 done by Dr.Umesh Mehta and diagnosis of Mitotic stricture just proximal to sigmoid descending junction was  made  and  multiple  biopsy  were  taken   and  sent to    HPE to     Lal pathology lab. As per report of Lal pathology patient was suffering with Moderately differentiated adenocarcinoma, confirming that the complainant was suffering with cancer of sigmoid colon. Necessary treatment in the form of surgical and Chemothreapy was also done in Government Medical Hospital but the complainant could not survive and she died on 18.03.2015 during the pendency of this complaint and her LRs have been continuing the complaint.

6.                          Now, we come to this conclusion after above facts and circumstances of the case when the patient was suffering with pain of lower abdomen first time on 07.06.2013 but actually she was suffering with the problem which was detected after conducting the CT scan and she was found suffering with adenocarcinoma of sigmoid colon but the treating doctor/OP No.1 did not diagnose at the first time of surgery it appears before operating the gall bladder either USG abdomen has not been done because no report is available on the file and not even produced the same despite specific instructions issued by this Forum even the blood test carried by the treating doctor does not suggest or favour the confirmation of diagnose of acute cholelithiasis with fibroid uterus because test report like TLC and DLC was within normal limit not raised and the patient was not having any fever at that time.  However, without report this document appears to be prepared after filing of the complaint in order to fill the lacuna. If the ultrasound has been got done then the same must have been mentioned in the record/OPD slip issued to the patient at the time of first entry alongwith other blood tests report which has been placed on file as Annexure C3 & Annexure C4. It appears that the patient was not diagnosed for the required treatment and the treating doctor had focused his mind on gall bladder surgery by taking hasty decision which amounts to carelessness and negligence on his part.

7.                          In our opinion before surgery the treating doctor should have waited to improve her general condition and the detail investigations should have been got done to find out any other cause of her complaint. There was hardly any immediate necessity to operate at that time, however, she had pain left lower abdomen and vomiting.  As per Annexure C3 & Annexure C4 dated 08.06.2013 (test reports) her TLC and DLC were within normal limit and have not crossed the limit. The patient was severely anemic due to excessive blood loss as a result of fibroid uterus meaning thereby proper detail investigation before surgery and proper diagnose has not been done by the treating doctor and he did the surgery of gall bladder without proper diagnose of the actual disease related to pain, vomiting and related to lower abdomen which was found after conducting the ultrasound and CT Scan abdomen lateron which cannot developed within a short period one month after surgery of gall bladder.  It means version of the patient regarding pain in lower abdomen related to the pathology lower abdomen i.e. adenocarcinoma and sigmoid colon rather than of actual cholelithiasis seems to be correct.

8.                          In view of the above discussion we come to the conclusion that the treating doctor did not examine the patient before surgery, surgery of gall bladder which was not necessary without proper diagnose of the actual disease related to left lower abdomen pain and vomiting which tantamounts negligence on the part of the doctor.                               

                             We have also gone through the judgment delivered by Hon’ble Apex Court in case titled as “V. Kishan Rao vs. Nikhil Super Speciality Hospital& Another” 2010 (2) RCR Civil 161, Whereby in para No. 47, Hon’ble Supreme Court is held that in a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself”. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.

                             Law laid down by the Hon’ble Apex Court in case titled as “V. Kishan Rao vs. Nikhil Super Specialty Hospital& Another” 2010 (2) RCR Civil 161, wherein claim of the complainant cannot be rejected on the ground that the expert witness not examined to prove negligence of doctor –it is not required to have expert evidence in all cases of medical negligence. In the present case res ipsa loquitur principle is applied. The case law titled as Dr.Sou Jayshree Ujwal Ingole Vs. State of  Maharashtra and another PLR  (2017-3) page 505 (SC)  relied upon by learned counsel for OP No.1 is not applicable to the case in hand and the same is being distinguished.

9.                          Now, we are coming on the point of quantum of compensation. Admittedly, treating doctor has charged Rs.17,000/- on account of treatment charges and some amount must have been spent upon the medicines, special diet, attendants transportations, stay in hospital etc. (from the date of admission till discharge), therefore we assess sum of Rs.8,000/- besides the compensation of Rs.1 lac  on account of negligency on the part of the treating doctor as discussed in above mentioned paragraphs of this order. Thus, the complaint of the complainant is partly accepted with costs which is assessed at Rs.5,000/- and admittedly OP No. 1 is insured with the OP No. 2 as per Professional Indemnity Insurance Policy (Doctor) as Annexure R3, therefore, OP No.2, being insurer, is directed to pay the awarded amount and to comply with the following directions within a period of 30 days from the date of receipt of copy of this order:-

(i)      To pay an amount of Rs. 25,000/- (Rs.17,000+ Rs.8000/-)  along with interest @ 9 % per annum from the date of filing of complaint till its realization.

2. Also to pay a sum of Rs.1,00,000/- as compensation for suffering pain, mental agony and harassment and amounting to Rs. 5,000/- as cost of proceeding within 30 days failing which this amount would carry 9 % interest for default period till realization.

 

Copy of this order be supplied to both the parties free of costs.  File be consigned after due compliance.

 

ANNOUNCED ON:      18.12.2017

                        

                           

(PUSHPENDER KUMAR)     (ANAMIKA GUPTA)      (D.N.ARORA)

MEMBER                                MEMBER                      PRESIDENT