Haryana

Ambala

CC/371/2017

Smt Poonam Arora - Complainant(s)

Versus

Dr Ajay Madan MBBS - Opp.Party(s)

Gurpreet Singh Anttal

07 Aug 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AMBALA

 

                                                          Complaint case no.        : 371 of 2017.

                                                          Date of Institution         : 02.11.2017.

                                                          Date of decision   : 07.08.2018.

 

Smt.Poonam Arora wife of Shri Vikas Thakur, resident of Amarjeet Colony, Behind Punjab Farms, Dera Bassi District Mohali (Punjab).

 

……. Complainant.

                                      Versus

 

1.Dr.Ajay Madan, MBBS (M.D.) Madan Ultrasound & IVP Centre, TB Hospital, near Jagadhari Gate, Ambala City.

2.New India Assurance Company Limited, Branch Office, Ambala City through its Branch Manager.

                                                                             ….…. Opposite parties.

 

BEFORE:   SH. D.N. ARORA, PRESIDENT

                   SH. PUSHPENDER KUMAR, MEMBER         

                  

Present:       Sh.Gurpreet Antal, counsel for complainant.

                   Sh.Sandeep Sharma, counsel for OP No.1.                                                          Sh.J.S.Rathaur, counsel for OP No.2.

 

ORDER

                   The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 with the averments that she had come to her parental home at Ambala and on 16.11.2012 she developed severe pain in her stomach, therefore, she visited Dr.Manoj Aggarwal, who diagnosed the pain was due to stones in Ureter pipe and kidney. He advised to take water in excess and in case stone does not come out then Laser operation would be required. On 17.11.2012 again severe pain was developed  then she visited Dr.Manoj Aggarwal but who was not available then she came across a sign board having writing stones are removed through ultrasound guided niddle, therefore, she was taken to the  OP No.1 who demanded Rs.15,000/- for the removal of stones and assured that the stones would be removed by crushing with needle without stitches. OP No.1 without conducting any test performed the operation for four hours and declared that stones have been removed and discharged her. On 18.11.2012 again she got severe pain and OP No.1 again performed operation on 19.11.2012 which took five hours.  The Op No.1 told the husband of the complainant that the stones have been sent to laboratory for test. On 20.11.2012 water and blood started coming from the back but OP No.1 said that it was local leakage and dressing has been done and in case leakage is not stopped then another operation would be done.  The complainant consulted with the doctors of Civil Hospital on 22.11.2012 and came to know that leakage was due to problem in kidney. She was taken to MM.Hospital Mulana where x-ray was conducted and found one metallic wire in the stomach which caused leakage. On 22.11.2012 another operation was conducted in M.M.Hospital and metallic wire was removed and it was further found that stones were still existed and the urinary pipe was removed after smashing the same, therefore, due to blood cloats and infection in kidney the stone could not be removed. On 26.11.2012 the condition of the complainant become serious due to leakage of kidney. The complainant was again operated on 27.11.2012 and stunt was inserted. On 21.12.2012 the stunt was removed and thereafter the leakage was stopped. It all happened due to negligence of the Op No.1 who operated the complainant in casual manner and left the metallic wire in the stomach, therefore, she had to spend Rs.3,00,000/- on operations, medicines, treatment etc. besides mental agony and harassment and she had to remain on leave without pay from 17.11.2012 to 07.01.2013.  In evidence, the complainant has tendered affidavit Annexure CA and documents Annexure C1 to Annexure C14.

2.                          On notice Ops appeared and filed their separate replies. Op No.1 in its reply has submitted that the complaint is not maintainable as she has no cause of action to file the same being without disclosing the true facts before this Forum. The complainant has not brought the treatment record of Dr.Manoj Aggarwal where he had advised the complainant to take excess water and suggested Laser operation. The complainant had visited the Op No.1 on 17.11.2012 with history of Rt Renal and Rt ureteric stones and due to which patient was not passing urine. She had asked for breakage of stone by ultrasound guided micro PCNL. She had only paid Rs.10,000/- for entire procedure and medicines and the procedure was done after showing the ultrasound reports by the complainant. It was specifically told to her about fewer chances for removing the Rt ureteric stone and it will give timely relief. On 17.11.2012 she was discharged with no pain and was fine and drain catheter was put in Rt Renal Area to relieve the pressure caused by the ureteric stone and she was advised to come next day to remove the catheter. No operation was conducted by the OP No.1 on 19.11.2012 except the above procedure which was done after conducting the test. She did not visit the clinic on 18.11.2012 and on 19.11.2012 when she visited the clinic catheter was removed. There was some local leakage of urine as the Rt URETER  was obstructed by the stone to localize the Rt URETER and to put a uretric catheter to relieve back pressure  but it could not be put as the stone was obstructing the ureter completely, therefore, she was advised to visit next day but she went another hospital on 20.11.2012. She has not produced the record of Civil Hospital, Ambala and Maya Devi Memorial Hospital, Ambala City. There is no negligence on the part of the Op No.1. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

3.                          OP No.2 in its reply has taken preliminary objections such as jurisdiction, maintainability and concealment of material facts etc. The liability of the insurance company is subject to various objections as per the terms and conditions of the policy. It is incorrect that she had suffered pain in stomach on 16.11.2012, 17.12.2012, 18.11.2012 and visited Op No.1 on 19.11.2012 and 20.11.2012. OP No.1 had not conducted any test and performed the operation for four hours and after operation stones were removed. It is also incorrect that complainant become serious because of kidney leakage and she had spent Rs.3 lakh on operation, medicines and treatment etc. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavit Annexure RA and documents Annexure R1 to Annexure R5.

4.                          We have heard learned counsel for the parties and have gone through the case file very carefully.

5.                          Learned counsel for the complainant has argued that the Op No.1 while treating the complainant left a metal wire in her stomach and due to this she has to go various operations and tests in different hospitals resulting into financial loss upto Rs.3 lacs besides mental agony and harassment. The act and conduct of the OPs clearly amounts to deficiency in service on their part.

6.                          On the other hand learned counsel for the OPs have argued that the  contentions of the complainant are baseless as no operation has ever been conducted by the OP No.1 and the complainant has neither produced any record of the doctor with whom she had visited prior to taking treatment from Op No.1 and even she has also not brought any evidence such as record of civil hospital and any other hospital from where she had allegedly taken treatment on the case file to show that Op No.1 had ever committed and medical negligency in treating the complainant.

7.                          After going through the material available on the case file it is clear that the complainant has not produced her treatment record allegedly taken by her in para No.2 of the complainant from Dr.Manoj Aggarwal on 14.11.2012.   It is strange that as per complainant she had visited the Op No.1 on 18.11.2012 where she was operated upon and when stomach pain was not released another operation was also done on 19.11.2012 and when there was no improvement in the condition of the complainant as blood and water was coming out from the back then another operation was conducted at M.M.Hospital on 22.11.2012 but the complainant has not produced any treatment record on the case file to show that the alleged metallic wire was left by the Op No.1. No doubt OP No.1 had treated the complainant as per Annexure C12 on 17.11.2012 and he prescribed some medicines to the complainant and on 19.11.2012 the treating doctor had removed the drain catheter and dressing done, (local area) i.e. surrounding area was normal and after that x-ray was done as per x-ray report there was stent in Situ. However, no redio operate shadow were seen in renal area but it cannot be said that the complications as alleged to the complainant were due to the negligence and careless treatment of OP No.1. Hon,ble Apex Court of India in title  “Kusum Sharma & ors. Vs. Batra Hospital & Medical Research Centre & others reported in 2010 (2) RCR (Civil) 161 wherein the Apex Court of India has directed to keep in view the following principles while holding medical negligence:-

1. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
2. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring a reasonable decree of skill and knowledge and must exercise a reasonable decree of care. Neither the very highest nor a very low decree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
9. It is our bounded duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10. The medical practitioner at time also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
11. The medical professional are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals. 2005 (3) RCR (Crl.) 836 relied.

8.                In view of above principals mentioned in the judgment delivered by the Apex Court of India in case title Kusum Sharma & ors. Vs. Batra Hospital & Medical Research Centre & others (Supra), the opposite party No.1 has not committed any medical negligence while treating the complainant. The complainant has failed to prove his case against the OPs by leading cogent and reliable evidence which could show that the OP No.1 was deficient in providing service. We accordingly dismiss the present complaint leaving the parties to bear their own costs. Copies of this order be sent to the parties free of costs. File be consigned to the record room.

 

ANNOUNCED  ON:     07.08.2018

                                               

                   (PUSHPENDER KUMAR)                        (D.N.ARORA)                             

                        MEMBER                                                    PRESIDENT