BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 220 of 2016
Date of Institution : 06.09.2016
Date of Decision : 12.10.2017
Poonam Sharma (aged 21 years) wife of Sh. Kalu Ram Sharma, resident of Saraswati Colony, Rania Road, Sirsa Tehsil and District Sirsa(Haryana).
……Complainant.
Versus.
- Dr. Bindu Sharma wife of Dr. Ritesh Sharma, SHREE HOSPITAL, opposite Honda Showroom, Dabwali Road, Sirsa Tehsil and District Sirsa(Haryana).
- The Oriental Insurance Company Limited, through its Branch Manager, Branch Office, Janta Bhawan Road, Sirsa, Tehsil and District Sirsa, Haryana.(impleaded as OP No.2 vide order dated 07.11.2016 passed by this Hon’ble Forum)
Respondent/OP No.1 Insured vide Insurance Policy No.272200 /48/2016/ 23454, effective from 23.02.2016 to 22.02.2017 issued by OP No.2 through its New Delhi Office.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI R.L. AHUJA…………………….. PRESIDENT
SMT. RAJNI GOYAT………………… MEMBER.
SHRI MOHINDER PAUL RATHEE……MEMBER.
Present: Sh.Anil Bansal, Advocate for the complainant.
Sh. J.D. Garg, Advocate for the opposite party no.1.
Sh. Rakesh Bajaj, Advocate for the opposite party no.2.
ORDER
In brief, the case of the complainant is that complainant is a poor lady and is married with Sh. Kalu Ram Sharma, who is working in a factory namely Vishkarma Industries situated at Rania Road, Sirsa on a monthly salary of Rs.15,000/- and out of their wedlock a male child was born, which is now about three years old and later on a female child was adopted by complainant with the consent of her husband to complete their family. It is further averred that as their family was complete, so complainant and her husband decided to go for family planning by way of Sterilization Operation. It is further submitted that on 08.03.2016, the complainant alongwith her husband visited the reputed hospital “Shree Hospital, Dabwali Road, Sirsa”, which is known for multispecialty solutions of various disease/illness/health problems and contacted lady doctor Bindu Sharma, MBBS, DNB, MS(Obs & Gynae) of Shree Hospital. The complainant and her husband told the doctor that complainant wants to undergo Sterilization Operation, because her family is complete now and for better bringing up of their two living children. Dr. Bindu Sharma checked the complainant in OPD and advised the complainant that best and permanent method of Contraception is female Sterilization (Tubal Occlusion) and it is minor, painless and safe operation without any risk factor. The op doctor told complainant that “Sterilization Operation package” (including operation, all Drugs & Room Charges) is only 4500/- in toto and complete recovery time shall be 07 to 10 days. It is further averred that believing upon the assurance of op doctor, complainant and her husband gave consent for Sterilization Operation. Accordingly, the complainant was admitted vide Registration No.3123 dated 08.03.2016 and op-doctor advised some pre-operation tests viz. Hemoglobin, bleeding time, Clotting time and Pregnancy Test. These all tests were got carried out by Dr. Verma’s Lab, Near Sangwan Chowk, Sirsa on the reference of Dr. Bindu Sharma on that very day. It is further averred that after perusing all tests reports referred above, Dr. Bindu Sharma op on 09.03.2016 started Sterilization Operation of complainant around 2:30 p.m. and cut was made on the body of complainant without giving anesthesia and unbearable pain was started and complainant was literally crying and the op doctor sent the attending Nurse out of OT who met husband of complainant and told him that “Dr. Bindu need the help of Anesthesia Doctor immediately and visiting doctor fee shall be Rs.1200/- and further asked her husband to deposit Rs.10,000/- as total Operation fee, especially when the complainant was in severe pain and was on operation table. The complainant’s husband Kalu Ram under constrained and compelling circumstances deposited Rs.10,000/- immediately on the counter of Shree Hospital. Around 3:10 pm, anesthesia doctor came in the hospital and attended the complainant, who was in intolerable pain for the last 45 minutes and wound/cut remained open for that period of time. The anesthesia doctor attended the patient/complainant at about 3:15 pm and thereafter surgery/operation was carried out by op doctor. During 45 minutes of excruciating pain of complainant, her husband and other family members were also under great mental tension and agony. It is further submitted that after operation, the complainant was discharged from the hospital on same day i.e. 09.03.2016 at around 5:30 pm and prescribed four type of tablets/medicines for 5 days and the op doctor handed over the computerized cash bill of Rs.8000/- vide Bill No.299 dated 09.03.2016. The husband of complainant asked for signature of doctor/cashier on the bill, but it was told that computerized bill needs no signature and it is equally valid. The Bill was deliberately issued for Rs.8000/- instead of Rs.10,000/- actually paid by complainant. It is further averred that thereafter complainant visited Dr. Bindu Hospital with her husband on 16.03.2016 for follow up, but on that day doctor/op was not available, as she was told to be out of station and on telephone doctor directed the hospital nurse, namely Priya to change the dressing/bandage. The said nurse opened the old bandage and found that some liquid fluid was coming out of stitches and she pressed the wound with her hand without wearing any gloves and it caused a great pain to complainant, because the wound was not healed rather stitches area was badly infected. The nurse Priya changed the bandage of complainant and of her own prescribed medicine of two types on the same prescription slip in her writing on 16.03.2016 without any professional qualification, for speedy drying/healing of wound/infected area and Priya nurse told the complainant that to get the wound checked after 15 days. Due to pain, complainant again visited hospital of op on 25.03.2016 and the Op prescribed three new medicines and advised her to take those for three days. It is further averred that despite repeated checkup/follow up with op, the complainant was not recovering, so the complainant on 28.03.2016 visited and consulted the experienced doctor Smt. Santosh Bishnoi, MBBS, MS(Gyane & Obst.) of Santosh Hospital & Maternity Home, Sirsa and she after inspection of surgery area was of the opinion that stitches are badly infected and there is lot of pus in the stitches and wound would take at least three weeks time for complete healing. The complainant remained under the treatment of Dr. Santosh Bishnoi Hospital w.e.f. 28.03.2016 to 20.04.2016. On 13.04.2016, Dr. Santosh Bishnoi again applied new stitches for speedy recovery. It is further submitted that complainant incurred about Rs. 6,000/- for the treatment taken from Dr. Santosh Bishnoi between 28.03.2016 to 20.04.2016. It is further averred that op Dr. Bindu Sharma was very casual and negligent in the treatment and operation of complainant. The OP did not take due care and precaution of complainant, which resulted into acute pain and stitches became infected. The normal recovery took at least 45 days instead of maximum of 10 days time due to carelessness of op doctor. The utmost negligence of op was that she did not call Anesthesia doctor before start of operation, which left the complainant in severe pain for 45 minutes and wound remained open for that period. The op doctor is guilty of gross negligence in giving treatment/ providing health services to the complainant by which the complainant recovered one month later and suffered severe pain during treatment and complainant and her family members were under great stress, took treatment from another doctor and suffered huge loss. took treatment from another doctor and suffered huge loss. Nurse Priya prescribed the medicine of her own on 16.03.2016 without having requisite qualification and changed the dressing without wearing surgical gloves. It is further submitted that from the above treatment, it is clearly established that stitches were infected on account of utter negligence on part of OP doctor and her staff nurse. Moreover Op Doctor charged Rs.10,000/- instead of Rs.4500/-, which was initially settled between complainant and OP doctor. The complainant was unnecessarily burdened with Rs.16000/- for treatment charges(Rs.10,000 paid to OP and Rs.6000/- paid to Dr. Santosh Bishnoi) due to negligence of OP doctor, under compelling circumstances. It is further submitted that the husband of the complainant remained under tension and has to take leave for one month from factory without pay for attending the complainant. Thus, there was a loss of his monthly income of Rs. 15,000/- due to negligence of OP-doctor. Apart from it, complainant incurred at least Rs.3000/- extra for conveyance charges from residence to hospital (to and fro) for treatment of complainant, for which OP-doctor is liable. It is further submitted that the complainant has to take special diet for 30 days unnecessarily due to negligence of OP-doctor, which burdened her with Rs. 5000/- at least. The op doctor has caused mental tension, harassment and agony to the complainant and her family members and as such she is liable to pay compensation of Rs.50,000/- to her. The OP-doctor is guilty of gross negligence in giving treatment/providing health services to complainant, by which the complainant recovered one month later and suffered severe pain during treatment and complainant and her family members were under great stress, took treatment from another doctor and suffered huge loss. Hence, this complaint.
2. On notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections that the present complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous which is unsustainable in the eyes of law and has been filed without any justified reason/cause against the op just to harass, defame and extort illegal money from the op, hence the complaint is liable to dismissed; that no specific, scientific and justified allegations in regard to negligence or deficiency in providing services has been made by the complainant against the op and the complainant has totally failed to explain “as to how she is involved and the op was negligent”, hence the complaint is miserably failing to explain the cause of action against the op; that the complainant has filed this complaint with false allegations of negligence in this Forum by claiming exorbitant amounts without any basis, just to waste the valuable time and defame the op. Although it is a fact that the op has not committed any negligence and deficiency in service in this case, while providing the said treatment and that the complainant is bad for non-arrangement and mis-arrangement of parties. The op is insured with “ The Oriental Insurance Company Ltd.” through its Professional Indemnity Policy No.272200/48/2016/23454 effective from 23.02.2016 to 22.02.2017. On merits, it is submitted that patient Mrs. Poonam Sharma aged 21 years resident of Saraswati Colony, Sirsa visited Op’s OPD at Shree Multispecialty Hospital on 08.03.2016 during morning hours. The couple wanted to undergo tubectomy as the permanent method of birth control. After taking a thorough history and clinical examination, op gave them Cafeteria choice and counseled them about all the temporary & permanent methods of birth control/contraception in details. Patient party told the op that they have one child, a son 3 years old who was born as a full term normal delivery and thereafter the couple adopted a female child. Op told them to make use of intrauterine contraceptive device which is cheaper & equally effective method as they have only one child of their own. But they wanted to undergo tubectomy only. So, the op counseled them about the tubectomy method, procedure & surgical benefits and risks in details. Op told them about the incision, the steps of tubectomy and the mode of anesthesia. She further told them that the op uses surgical method of tubectomy under local anesthesia or short general surgical anesthesia or spinal anesthesia as per the need. No guarantee, warrantee or any assurance was given to the patient party. Op prescribed them few tests which are essential, according to protocol, i.e. Hemoglobin, BT, CT, UPT reports. The couple visited the op again on the next day with the reports, which were within normal limits. They came prepared for the surgery. This time they came with a nurse ‘MAYA’ who was working with Dr. Santosh Bishnoi at that time. Maya told the op that she knows the couple and she said that the op should give short GA as Poonam cannot tolerate even slight pain. But Mr. Kalu Ram Sharma insisted the op to give LA. So the op told them that the op will start with local anesthesia, but if the patient will not co-operate and will complain of pain, then the op will call anesthetist and give short GA. They agreed to this, gave written consent and got admitted on 09.03.2016. It is further submitted that pre-medication was given to the patient prior to taking her into O.T. The patient was shifted into O.T. at 2:30 p.m. on 09.03.2016. OP counseled and calmed Poonam, so that she remains co-operative. Op took her vitals on the electronic monitor. Assistant prepared the surgical trolley taking all aseptic precautions. Op scrubbed for 5 minutes with Betadine scrub, wore her autoclaved surgical gown & new pair of surgical gloves. Under all asepsis, abdomen painted & draped. The surgery was started at 2:40 p.m. Suprapubic Midline incision planned. 10CC of 2% Lignocaine injected subcutaneously & deeper over the proposed incision line. After waiting for about 10 minutes, 1.5 cm long incision was given. Skin & subcutaneous fat was cut. Further 10CC of Lignocaine was injected into the rectus sheath & muscle plane. But Poonam started complaining of pain and she was keeping tight. Op counseled her, tried to calm her, but due to anxiety, she insisted the op to give her full anesthesia. So, her husband was called outside O.T. and he was told of the entire situation and so he agreed to call anesthetist and gave short GA. At 2:55 p.m. assistant called Dr. Rahul, Dr. Suresh, but they were not available. So, they called Dr. Goldy Gupta and he arrived in 10 minutes, gave short GA and the op conducted the rest of the surgery. The abdomen was not opened before and only skin & subcutaneous fat was cut and op covered it with Betadine soacked sterile auto clave gauze piece till the anesthetist came. Moreover the op gave injection fortwin to Poonam to allay her anxiety and pain. She was absolutely stable at the end of the surgery. Dressing was applied, her vitals were taken and she was shifted out of OT around 3:30 p.m. Thereafter hourly vitals were taken for 3 hours. Dressing was checked repeatedly and it was clean. It is further submitted that patient passed urine comfortably, took tea, biscuit and was discharged around 6-6.30 pm. At the time of discharge, the patient’s husband Mr. Kalu Ram was asked to deposit Rs.8000/- as total cost. She was given medicine for 5 days and asked to come for the follow-up after 5 days but she came after 7 days. At that time the op was out of the station. Op was in Gurgaon Medanta Hospital for CT guided Lung Biopsy as she had an attack of acute pneumonitis. The senior staff nurse Priya did her dressing. Post operative stitch infection is a common complication because of the poor hygiene of the patient. According to her, stitches were fine with slight serous discharge which is quite common after any surgery. She talked to the op telephonically and prescribed her medicine as the op told her. She thoroughly explained Poonam to take a high protein diet. The patient came for further check-up on 25.03.2016, wound was absolutely healthy then. There was no discharge or redness over the stitch line. So the op counseled her good diet and rest and gave her analgesic for 3 days. Thereafter, she never came for the follow-up. After this the patient lost to follow up and never came back. Everything the op has done was done diligently, prudently, with utmost due care and caution in treating the said patient. There was no negligence at least from their side. Remaining contents of the complaint have also been denied and prayer for dismissal of complaint has been made.
3. On being impleaded, opposite party no.2 appeared and filed written statement taking certain preliminary objections. It is submitted that neither the complainant nor the op no.1 gave any information of the alleged occurrence to the answering op, which was necessary as per terms and conditions of the insurance policy. Moreover, the liability of the answering op to indemnify the insured is subject to certain terms and conditions as laid down in the insurance policy. Remaining contents of complaint have also been denied.
4. The complainant produced her affidavit Ex.CW1/A, affidavit of her husband Kalu Ram as Ex.CW2/A, affidavit of Mani Ram son of Sh. Jaisa Ram Ex.CW3/A, copy of prescription slip dated 8.3.2016 Ex.C1, copy of test report Ex.C2, copy of receipt of Rs.8000/- Ex.C3, copy of prescription slip of Santosh Hospital dated 28.3.2016 Ex.C4, copy of prescription slip of Santosh hospital dated 11.4.2016 Ex.C5, copies of medical bills Ex.C6 to Ex.C10. OP no.2 produced affidavit Ex.R1. OP no.1 produced affidavit Ex.R2 and copies of documents Ex.R3 to Ex.R14 i.e. qualification certificates, medical literature Ex.R15, copy of policy schedule Ex.R16, copies of treatment notes Ex.R17 to Ex.R19.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. It is an admitted fact that complainant was admitted in the hospital of opposite party no.1 on 8.3.2016 for tubectomy i.e. sterilization operation which was conducted by opposite party no.1 on 9.3.2016. It is also an admitted fact that before operation, no arrangement of anesthesia was done by the opposite party no.1 and it was only done when the complainant felt unbearable pain and during the operation when a long incision was already made to the body of complainant, the opposite party no.1 called anesthetist. It is a fact of common knowledge that services of a anesthetist can be required at any time during such operation but the opposite party no.1 was so negligent that she did not consider it fit to arrange for a anesthetist to avail his services at any time during the operation but due to severe pain to the complainant she sent her staff members from the operation room to call anesthetist but two anesthetist i.e. Dr. Rahul and Dr. Suresh were not available at that crucial time and then Dr. Goldy Gupta was called and he also took time in coming to the hospital of opposite party no.1. The surgery was started around 2.30 p.m. and anesthetist could reach the hospital of op no.1 after 40/45 minutes and after that rest of the surgery could be conducted by op no.1. The complainant remained in continuous severe pain for such a long time of 45 minutes due to the laxity of the opposite party no.1 which fact is duly proved on file. The authority cited by learned counsel for the complainant in case titled as Pushpa Bhatnagar & Ors. Vs. Varun Hospital & Ors. IV (2016) CPJ 140 (NC) is fully applicable in this case in which it has been held that “Medical Negligence, Fracture of upper arm near shoulder- Surgery conducted- Operation successful- Cardiac arrest- Death of Patient- Deficiency in service- State Commission dismissed complaint- Hence appeal- Obese patient should be evaluated on thorough non-judgmental fashion with particular emphasis on difficulty that obese patients to anesthetist to assess the cardiac function- OP2- doctor failed to do Standard Pre-anesthetic assessment, administered medicines, without taking allergy-test. There is no record that neither physician nor anesthetist certified patient fit for surgery, but OP no.3 performed surgery- Due to lack of proper pre-operative assessment, the patient passed away. Post mortem report is not conclusive for the cause of death and viscera report do not show that any chemical position was noted- It will not absolve the negligence of doctors.”
7. In the present case, the opposite party doctor should have done standard Pre-anesthetic assessment and should have done arrangement of anesthetist before doing the operation but she has failed to do so. The op doctor cannot absolve from her liability by saying that she told the patient and her attendant that she uses surgical method of tubectomy under local anesthesia or short general anesthesia or spinal anesthesia as per the need because the patient cannot be said to be aware about local anesthesia or short general anesthesia or its result and that it cannot be said that it is in the knowledge of the patient that he requires short general anesthesia or full anesthesia. It is the doctor who has to make prior alternative arrangements of anesthetist whose services could be required at any time as per the condition of the patient at the time of operation and it cannot be said that it was the consent of the patient or her attendant not to call any anesthetist. So, the opposite party no.1 is found professional medical negligent in this regard.
8. It is also the case of the complainant that op doctor was very casual and negligent in the treatment and operation of complainant. The op did not take due care and precaution of complainant which resulted into acute pain and stitches became infected. The normal recovery took atleast 45 days instead of maximum of 10 days time due to carelessness of op doctor. The complainant has also placed on file copy of prescription slip of Santosh Hospital dated 28.3.2016 as Ex.C4 and copy of prescription slip of that hospital dated 11.4.2016 as Ex.C5 and these prescription slips supports the version of the complainant that stitches were badly infected and took long time to heal and she has to visit another hospital for proper treatment. The complainant has also placed on file affidavit of one Mani Ram proprietor of Vishkarma Agriculture Industries, Rania as Ex.CW3/A in which he has deposed that husband of complainant Kalu Ram has been working in his Industry as Assistant Accountant since 2012 on a monthly salary of Rs.15,000/- and he took one month long leave from 16.3.2016 to 15.4.2016 without pay for the treatment of his wife who had undergone sterilization operation. Kalu Ram took one month leave because complication occurred to his wife in the said operation.
9. Now we assess the compensation to be awarded to the complainant. The complainant has alleged that opposite party no.1 charged Rs.10,000/- as operation fee including fee of Anesthesia doctor instead of Rs.4500/- which was initially settled between complainant and op doctor but issued receipt of the amount of Rs.8000/- only. The receipt of the amount of Rs.8000/- charged by op doctor is placed on file as Ex.C3. In our view the complainant is entitled to refund of the amount of Rs.10,000/- paid by the husband of the complainant in the hospital of op doctor. She is also entitled to another amount of Rs.6000/- paid to another hospital for proper treatment. The complainant is also entitled to compensation of Rs.25,000/- for pain and suffering and is also entitled to further amount of Rs.5000/- as misc. expenses including diet, conveyance charges and litigation expenses.
10. Thus, as a sequel to our above discussion, we allow the present complaint and direct the opposite parties to pay a total sum of Rs.46,000/- to the complainant within a period of 30 days from the receipt of copy of this order, failing which the complainant will be entitled to interest @9% per annum from the date of filing of present complaint i.e. 6.9.2016 till actual payment. It is made clear that it will be the prime liability of the opposite party no.1 who has caused above said medical negligence to pay the above said amount of Rs.46,000/- to the complainant and the opposite party no.2 may reimburse the awarded amount to the insured doctor as admissible under terms and conditions of the policy issued by it. A copy of order be supplied to the parties free of cost. File be consigned to record room after due compliance.
Announced in open Forum. Member Member President,
Dated: 12.10.2017. District Consumer Disputes
Redressal Forum, Sirsa.
