BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.

Complaint no.204/09.

Date of instt.: 06.07.2009. 

                                                 Date of Decision: 11.05.2015.

Joginder Kaur wife of Gulzar Singh son of Dayal Singh, resident of Nanakpura Bhuna, Tehsil Guhla, Distt. Kaithal.

                                                        ……….Complainant.      

                                        Versus

1. Dr. A.K.Mittal C/o Mittal Surgical and Maternity Hospital, Ambala Road, Kaithal, Tehsil and Distt. Kaithal.

2. Mittal Surgical and Maternity Hospital, Ambala Road, Kaithal, Tehsil and Distt. Kaithal through its Prop./M.D.

3. United India Insurance Company Ltd. through its Divisional Manager, 54, Janpath, Connaught Place, New Delhi-110001 (Professional Policy No.040100/46/07/35/00000428 from 09.05.2007 to 08.05.2008).

..……..Opposite Parties.

COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.

Before:           Sh. Rajbir Singh, Presiding Member.

     Smt. Harisha Mehta, Member.

Present :        Sh. Devender Singh, Advocate for complainant.

Sh. R.C.Goyal, Advocate for the opposite parties.No.1 & 2.

None for Op No.3.

                       ORDER

(RAJBIR SINGH, PRESIDING MEMBER).

                       The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that she was having some abdominal pain/problem which was suspected due to Pitta Stone and the husband of complainant and her relatives brought her to the premises of Ops.  It is alleged that the Op No.1 after examination suggested Ultrasound.  It is further alleged that on examination of tests and report, the Ops found incomplete investigation and asked the complainant to come up on the next day early in the morning i.e. on 29.01.2008.  It is further alleged that the complainant as per directions of Op No.1 duly attended the Ops on 29.01.2008, who charged Rs.600/- as complete investigation and reports which were duly paid by the complainant.  It is further alleged that after examining the said tests and reports on the same day, the Op No.1 conducted Endoscophy on the same day and thereafter operated the complainant after one hour and thereafter providing necessary medical aid asked the complainant to wait for improvement.  It is further alleged that the problem of complainant became bad to worst, as such, the Ops were informed and re-ultrasound was got conducted from Sanjay Diagnostic Centre with X-ray reports as per the directions of Ops on 30.01.2008 and the complainant was re-admitted by the Ops.  It is further alleged that on 31.01.2008 finding no improvement in the serious condition of complainant, one more ultrasound and tests were got conducted by the Ops from Modern Ultrasound Kaithal for re-confirmation either stone is removed or not and came to know that the problem remains the same.  It is further alleged that the complainant remained admitted and treated by the Ops from 28.01.2008 till 10.02.2008 and repeated experiments conducted by the Ops after open surgery on 31.01.2008, improvement was expected but after re-examination by following one week treatment during admission at Ops, the problem remains the same and condition became worst even after adopting prescribed treatment under the care and supervision of Ops.  It is further alleged that on 02.03.2008, the ultra sound was conducted with Zero result the condition of complainant became bad to worst due to pre-parie-post operation services and negligence therein.  This way, the Ops are deficient in service.  Hence, this complaint is filed.   

2.     Upon notice, the opposite parties appeared before this forum and filed written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; that the present complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous which is unsustainable in the eyes of law as the same is cooked up and has been filed without justified reason/cause against the Ops No.1 & 2; that no specific, scientific and justified allegations in regard to negligence or deficiency in providing services, has been made by the complainant against the Ops No.1 & 2 and the complainant has totally failed to explain “as to how the Ops No.1 & 2 were negligent”, hence, the complaint is based on non-specific, unscientific and laymen conjectures and so, is liable to  be dismissed in linine; that the present complaint is not supported by any medical expert opinion by the complainant.  It is essential to annex medical expert opinion before filing a consumer case; that the complainant has approached this Forum without support of any expert view of subject specialist and further the complainant has leveled these allegations without support of any scientific literature in this regard, which indicates/denotes/supports the allegations made by the complainant with clear specification/stipulation of nature, type, quality and quantity of negligence or deficiency in services provided by the Ops No.1 & 2 to the complainant; that this Forum has no jurisdiction to entertain and adjudicate upon the contents of complaint since it is not a consumer dispute and does not fall within the provisions of the Consumer Protection Act, 1986; that the complicated question of law and facts are involved in the present complaint and for adjudication of which, only the civil court is the best platform.  There is no deficiency in service on the part of answering Ops.  On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.    

3.     In support of their case, both the parties submitted their affidavits and documents.  

4.     We have heard ld. counsel for both the parties and perused the case file carefully and minutely.

5.     We have perused the complaint & reply thereto and also have gone through the evidence led by the parties.

6.     Keeping in view the facts and circumstances of the case, we found that the complainant was having some abdominal pain/problem which was suspected due to Pitta Stone and the complainant approached the Ops.  After examining the tests and reports on the same day, the Op No.1 conducted Endoscophy on the same day and thereafter operated the complainant after one hour and thereafter providing necessary medical aid asked the complainant to wait for improvement.  The problem of complainant became bad to worst.  Ld. Counsel for the Ops No.1 & 2 contends that the complainant has not supported any medical expert opinion which could prove that there was negligence on the part of Op No.1.  He vehemently contends that the complainant/patient was admitted on 29.01.2008 with H/O pain abdomen, vomiting and fever for the past 10 days.  The patient had undergone cholecystectomy in the past.  USG report showed stone in the CBD with dilated CBD.  On 29.01.2008, after all routine investigations, ERCP with Endoscopic Papillotomy was done with biliary stenting.  On 30.01.2008, the patient still showed no improvement and the pain was persisting.  So, a repeat USG was got done and the report showed stone present in the CBD.  On 31.01.2008, another USG was done for a second opinion by Modern Diagnostics and the report showed stone present in the CBD.  The patient was advised treatment as per prescribed norms of general practice after explaining the diagnosis, treatment, prognosis, benefits, losses and known complications etc.  On 01.02.2008, after taking consent from the patient’s relatives and attendants, open cholecystolithotomy with T-tube drainage was done under general anaesthesia and stones from the CBD were removed.  The operation was performed diligently, prudently with due care and caution.  The patient started improving with T-tube.  On 10.02.2008, the stitches were removed and the patient was discharged in a healthy condition.  After a few days of discharge, the patient came to the Op No.1 with pus discharge from the drain site.  On 02.03.2008, USG was got done and the report showed no evidence of pus collection and no evidence of stones in the CBD.  T-tube cholangiogram was also done which was also normal but, the purulent discharge was still present from the drain site.  So, the patient was advised pus culture and sensitivity and accordingly, treatment was given.  On 24.03.2008, when even after the treatment, the purulent discharge was still found to be present, the patient was advised and referred to a higher centre either at Patiala or PGI, Chandigarh.  However, it is worth mentioning that ERCP for stone removal in CBD has a success rate of 85-90%.  In case of failure by ERCP, still open surgery is required and the same treatment was given to this patient.  The patient was treated diligently, prudently with due care and caution.  On perusal of brief history of P.G.I., Chandigarh, no negligence is found on behalf of Op No.1.  Moreover, the Ops have also produced the copy of medical literature (Ex.R1) on case file, wherein it has been mentioned as under:-

        Patients with common duct stones who have had a previous cholecystectomy are best treated by endoscopic sphincterotomy.  Using a side-viewing duodenoscope, the ampulla is cannulated, and a 1-cm incision is made in the sphincter with an electrocautery wire.  The opening created in the sphincter permits stones to pass from the duct into the duodenum.  Endoscopic sphincterotmy is unlikely to be successful in patients with large stones and it is contraindicated in the presence of stenosis of the bile duct proximal to the sphincter.  Laratomy and common duct exploration are required in a few cases.  Ld. Counsel for the Ops also submitted an authority reported as Martin F.D.Souga Vs. Mohd. Ishfaq, 2009(3) SCC, wherein it has been held by Hon’ble Supreme Court that Medical negligence-Precautions required for protection from liability for-Detailed instructions regarding to be followed by doctors/hospitals/nursing homes laid down-Observing that law is a watchdog, not a bloodhound, held, doctors doing duty with reasonable care would not incur liability even if their treatment filed.  The said authority is fully applicable to the present case.  So, we are of the considered view that the complainant has failed to prove any medical negligence or deficiency in service on the part of Ops.

7.     Thus, in view of above discussion, we find no merit in the present complaint and dismiss the same.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.

Announced.

Dt.11.05.2015.

                        (Harisha Mehta),                 (Rajbir Singh),   

                             Member.                              Presiding Member.