BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 61 of 2015.
Date of Institution : 27.3.2015
Date of Decision : 27.7.2017.
Smt. Kulwinder Kaur wife of Shri Balkaran, aged about 36 years, resident of village Salamkhera, Post Office Odhan, Tehsil and District Sirsa.
……Complainant.
Versus.
1. Dr. Mohar Singh, M.S. Surgical and Maternity Hospital, Opposite R.S.D. High School, Dabwali Road, Sirsa.
2. United India Insurance Company Limited, DO 1, 60, Janpath, New Delhi- 110001, Branch Office situated at Sirsa, through its Branch Manager, with which respondent no.1 is insured vide insurance policy No.04100/46/12/34/00005541 for the period w.e.f. 6.11.2012 to 5.11.2013.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SMT. RAJNI GOYAT…………………….. PRESIDING MEMBER
SH. MOHINDER PAUL RATHEE ……… MEMBER.
Present: Sh. P.K.Mehta, Advocate for the complainant.
Sh. J.D. Garg, Advocate for opposite party no.1.
Sh. Kapil Sharma, Advocate for opposite party no.2.
ORDER
The case of the complainant in brief is that complainant is a house wife and belongs to a very poor family. That the complainant had some pain in her abdomen in the right side and she got the treatment from op no.1 and he advised for operation of open cholecystectomy and accordingly the op no.1 got admitted her in his hospital on 2.10.2013. The complainant was operated by the op no.1 on 2.10.2013 and was discharged on 6.10.2013. In the discharge card, it has been mentioned that the diagnosis was Gallstones and gallbladder was removed by open cholecystectomy. Accordingly, the op had prescribed some medicines in this regard and complainant had taken the same. That for the said operation and treatment, the op no.1 had charged Rs.20,000/- from the complainant. It is further averred that after the aforesaid operation, the complainant did not get any relief. Thereafter, she several times visited the hospital of op no.1 and told him about her problem but op no.1 did not care for the same and flatly refused to attend her and told the complainant and her attendant that he had conducted the operation successfully. Thereafter, the complainant contacted Dr. R.K. Dhaka of village Odhan, District Sirsa and she remained under his treatment upto March, 2014. During this period, the aforesaid doctor had given some medicines and then on 26.4.2014 he had recommended ultra-sonography. Accordingly the complainant had got conducted the same from Public Diagnostic Centre Kalanwali and came to know that some part of her gallbladder was still in her abdomen. Then she approached Dr. Bhawna Sharma, Neurologist of Swai Man Singh Hospital, Jaipur on 28.4.2014 and the aforesaid doctor had categorically mentioned that there was partial cholecystectomy and she recommended for further operation. She was referred to Dr. Hanuman Khoja, Surgeon and he had recommended for further operation. In this regard, M.R.C.P. was also conducted on 13.5.2014 which clearly shows a well defined fluid intensity cystic structure of approximately 25 x 47 x 36 mm (AP X TD X CC) in the gall bladder fossa region for the reason of residual gall bladder and another possibility of post operative scar for other surgical procedure with no cholecystectomy is also there. Thereafter, the complainant approached the Apex Hospital, Sirsa and Dr. R.K. Mehta also suggested the operation in this regard. Accordingly the complainant was admitted in the Apex Hospital, Sirsa on 16.6.2014 and was operated on 16.6.2014 and was discharged on 20.6.2014. The aforesaid doctor had conducted the operation of the complainant and had given the findings residual GB of size 6 cm globular in shape i.e. cholecystectomy. Then this part was given to Dr. Verma Path Laboratory, Sirsa for biopsy. Accordingly the above said laboratory had given the findings on 23.6.2014 and it was categorically mentioned that the cholecystectomy specimen measuring 4.00 cm in length cut section lumen filled with multiple stones which clearly shows that the in the operation which was conducted by the op no.1 he did not remove the entire gallbladder and the complainant was not informed about the same. There was gross negligence and carelessness on the part of op no.1 and the complainant suffered a financial loss of Rs.2,00,000/- and also suffered mental agony, pain and tension. The complainant also served a legal notice dated 16.7.2014 upon the op no.1 but no reply was given. That even the complainant filed a complaint in this regard to the Deputy Commissioner, Sirsa on 18.7.2014. The Deputy Commissioner, Sirsa had sent the complainant to the Civil Surgeon, Sirsa. Accordingly, a committee was constituted in this regard by the Civil Surgeon, Sirsa and the committee had recorded the statements of all the parties and given the report to the effect that the op-doctor had not removed the entire GB of the complainant while conducting the operation and that the op-doctor had also not told in this regard to the complainant and her attendants and that even there is no such mentioning in the discharge card. The complainant had obtained the aforesaid enquiry report on the basis of application under RTI Act. That the aforesaid facts clearly prove gross negligence and deficiency in service on the part of op-doctor while conducting the operation of the complainant. Hence, this complaint.
2. On notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections regarding cause of action and non joinder of necessary party etc. On merits, it has been asserted that patient came with pain in abdomen suggestive of cholecystistis with cholelithiasis for which open cholecystectomy was done diligently, prudently with utmost due care and caution. Patient was admitted on 1.10.2013 and was operated on 2.10.2013. Gall bladder was adherent to the large intestine. Such complications are the part and parcel of the disease in certain percentage of cases which needs further treatment. The complication was never because of the surgery. It has been further asserted that everything was done by op diligently, prudently with utmost due care and caution in treating the patient therefore, the CBD is not injured. In such cases there is a lot of swelling, edema, infection, adhesions making the tissue friable thus CBD injury may be caused and hence to prevent this the only part which was safe for removal was removed in the interest of the patient. The same was duly informed to the patient party orally hence there is no negligence, deficiency of service or unfair trade practice on the part of the op. The second operation done at Apex Hospital, Sirsa by Dr. R.K. Mehta is done for the disease which the patient continued to suffer and not because of previous surgery done by the op. No doctor at anywhere pointed out any negligence on the part of the op. This Forum should direct the complainant to produce the bills, receipts, cash memo and vouchers etc. to prove alleged expenditure of Rs.two lacs. Remaining contents of the complaint have also been denied and prayer for dismissal of complaint has been made.
3. On being impleaded as op no.2, the United India Insurance Company Ltd. i.e. insurer of op no.1 filed written statement taking certain preliminary objections. It has also been submitted that policy No.040100/46/12/35/00005541 w.e.f. 6.11.2012 to 5.11.2013 has been issued to Dr. Mohar Singh Chaudhary granting indemnity limit during the policy period but the liability of the answering op is subject to terms and conditions as laid down under the policy. It has been further submitted that complainant has totally failed to explain as to how op no.1 was negligent. Remaining contents of complaint have also been denied.
4. The complainant produced her affidavit Ex.C1 and copies of documents Ex.C2 to Ex.C16. On the other hand, op no.2 produced affidavit Ex.R1 and copy of insurance policy Ex.R2. OP no.1 produced affidavit Ex.R3 and copies of documents Ex.R4 to Ex.R20.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. The opposite party no.1 to prove that he is a well qualified doctor having degree of Master of Surgery and competent to do the above said surgery has placed on file copies of his certificates Ex.R15 to Ex.R20. However, there is no dispute about his qualification and degree. Admittedly, complainant Smt. Kulwinder Kaur was admitted in the hospital of opposite party no.1 on 2.10.2013 as she was suffering from pain in the right side of her abdomen and she was advised operation of open cholecystectomy by op no.1. She was operated on 2.10.2013 and was discharged on 6.10.2013. According to the complainant they were informed by the opposite party no.1 that gall bladder was removed in the above said surgery. However, she did not get any relief from the aforesaid operation and thereafter visited the hospital of op no.1 several times and told him about the problem but the op no.1 did not care for the same, flatly refused to attend her and told to the complainant and her attendant that he had conducted the operation successfully. Then she contacted Dr. Bhawna Sharma of Jaipur hospital and Dr. R.K. Mehta of Sirsa for the above said problem and came to know that whole gall bladder was not removed by the opposite party no.1 and the said fact was also not told to them and ultimately the doctor of Apex Hospital, Sirsa conducted second operation on 16.6.2014 and she was discharged on 20.6.2014. In the copy of discharge card Ex.C2 of the opposite party no.1 hospital, diagnosis is mentioned as Gall Stone and against the operative notes it is mentioned “Op. CHOLE” and there is no mention in the discharge card that whole gall bladder or partial gall bladder was removed. In the sonography report dated 28.4.2014 (copy Ex.C4) of the GETWELL C.T. Scan Centre, Jaipur, it is mentioned that “Tubular cystic areas of size approx. 51 X 22 mm seen in gall bladder fossa showing terminal surgical clip and proximal CBD communication? Partial cholecystectomy? Dilated cystic duct. Further, in the MRCP report dated 13.5.2014 of the above said Getwell MRI Centre, it is mentioned that ‘The study reveals a well defined thin walled fluid intensity cystic structure of approx 25 x 47 x 36 mm (AP x TD x CC) in gall bladder fossa region communicating to the CBD through a small lumen duct (cystic duct) – suggesting residual gall bladder. In the copy of prescription slip dated 28.4.2014 of Dr. Bhawna Sharma, M.D. (Medicine), D.M. (Neurology) of Swai Man Singh Hospital, Jaipur, she has mentioned that there was history of cholecystectomy but there was partial cholecystectomy. In the medical record of Apex Hospital, Sirsa Ex.C6 to Ex.C12, it is also mentioned that there was history of open cholecystectomy on 2.10.2013 by Dr. Mohar Singh and there was residual gall bladder. So, it is proved on record that in the operation conducted by op no.1, whole gall bladder was not removed and partial cholecystectomy was done whereas in the discharge card it is mentioned that open cholecystectomy was done. When the complainant did not get any relief she visited several hospitals for the disease and she came to know that whole gall bladder was not removed by op no.1. The plea of the opposite party no.1 in this regard is that patient came with pain in abdomen suggestive of cholecystistis with cholelithiasis for which open cholecstectomy was done. Gall bladder was adherent to the large intestine. Such complications are the part and parcel of the disease in certain percentage of cases which needs further treatment. The complication was never because of the surgery. It is further the plea of op no.1 that everything has been done diligently, prudently with utmost due care and caution in treating the patient, therefore, CBD is not injured. In such cases there is a lot of swelling, edema, infection, adhesions making the tissue friable, thus CBD injury may be caused and hence to prevent this, the only part which was safe for removal was removed in the interest of the patient and same was duly informed to the patient party orally, hence there is no negligence, deficiency of service or unfair trade practice on the part of op no.1. It is further plea of op no.1 that second operation done at Apex hospital, Sirsa has been done for the disease which the patient continued to suffer and not because of previous surgery done by op no.1. The patient also did not come to him for follow up. Learned counsel for the op no.1 has also cited authority of the Hon’ble National Consumer Disputes Redressal Commission in case titled as B.H. Parmar Vs. Dodiya Manharbhai @ Manubhai, 2012 (1) CLT 594, wherein it has been held that “Consumer Protection Act, 1986 Section 21 Medical negligence- Removal of stones from the gall bladder- Non removal of stone despite surgery. In his best professional judgment, based on the situation which he saw while performing the operation, Petitioner took a considered decision to only partially remove the gall bladder rather than endangering the life of the patient- Even though the initial sonography may not have revealed that the gall bladder was of abnormal size, once during the surgery, petitioner found that it was not only enlarged but was also attached to the liver, he took an on-the-spot decision as a skilled and competent doctor in the best interests of the respondent and duly recorded these facts. This important evidence was not even considered by the Fora below- No medical negligence on the part of petitioner- Impugned order set aside.” We have duly gone through the above said authority but the said authority does not fully favour the case of the opposite party no.1 in this case. The opposite party no.1 might have done operation in his best professional judgment based on the situation which he saw while performing the operation and removed part of the gall bladder of the complainant and therefore, he cannot be said medical negligent at the time of surgery but the opposite party no.1 did not inform the complainant or her attendant that only partial gall bladder was removed by him and also did not mention about this in the discharge card. It is relevant to refer to the fact that Civil Surgeon, Sirsa on receipt of complaint of complainant through Deputy Commission, Sirsa constituted a committee of four doctors namely Dr. T.R. Mittal, Dr. Amar Singh, Dr. Tomar and Dr. Vivek who looked into the complaint of the complainant and recorded statements of complainant, op no.1, Dr. G.N. Verma and Dr. R.K. Mehta. In his statement before the Enquiry Officers, opposite party no.1 stated that he does not remember that after the surgery he informed or not informed to the patient or her relatives that whole gall bladder or partial gall bladder was removed. He has also stated that he does not remember that after discharge patient came again to him for follow up or not. The said constituted committee has concluded that operation of the complainant was conducted by Dr. Mohar Singh in which whole gall bladder was not removed and in case of non removal of whole gall bladder, the complainant and her relatives should have been informed but Dr. Mohar Singh did not mention anything about this in the Bed Head Ticket. So, it is proved on record that Dr. Mohar Singh did not remove the whole gall bladder and also not informed the patient or her relatives about the facts. Hence, we agree to the conclusion of the said committee. Therefore, the op no.1 is deficient in service in this regard. Further when the opposite party no.1 in his statement before the Enquiry Officers has admitted that he does not remember that whether patient came to him again for follow up or not after the surgery and when the complainant has alleged that she visited to op no.1 after the surgery but he did not listen her and declared that he had conducted the operation successfully, the op no.1 seems to be deficient in service in this regard also. In this regard we are also fortified with the observations of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Jyoti Devi Vs. Suket Hospital & Ors. II (2016) CPJ 109 (NC) cited by learned counsel for complainant in which it has been held that “Consumer Protection Act, 1986- Sections 2 (1) (g), 14 (1) (d), 21(b)- Medical Negligence- Appendectomy- Surgery performed- Complaint of persistent pain- Corrective treatment taken from PGI, Chandigarh- Removal of foreign object- Deficiency in service- Compensation claimed- District Forum allowed complaint- State Commission partly allowed appeal- Hence revision- After appendectomy operation, patient visited OP-1 hospital number of times but Ops failed to diagnose cause of puss and pain- Ops should have been careful during follow up treatment- Post-operation care from Ops was casual and not as per standard- It was duty of Ops to investigate non-treating surgical wound- Deficiency in service established- Patient suffered physical agony for more than 5 years and case dragged for more than a decade, compensation granted by State Commission is on lower side hence enhanced- Impugned order modified.” The opposite party no.1 being deficient in service and opposite party no.2 being insurer of op no.1 during the relevant period are liable to compensate the complainant for above said negligence and deficiency in service and for her harassment in this regard. The complainant has alleged that she has suffered financial loss of Rs.2,00,000/- due to gross negligence of op no.1 but has not placed any bill in this regard and has not proved that how she suffered loss of Rs.2,00,000/-.
7. Keeping in view the facts and circumstances of the present case, we partly allow the present complaint and direct the opposite parties to pay a sum of Rs.1,50,000/- (Rs. One lac fifty thousand) to the complainant for harassment, pain and mental agony and also direct them to further pay a sum of Rs.5500/- as litigation expenses to the complainant. Both the opposite parties are jointly and severally liable to comply with this order within a period of one month from the date of receipt of copy of this order, failing which the complainant will be entitled to Rs.100/- per day as penalty from both the ops. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. Presiding Member,
Dated: 27.7.2017. Member. District Consumer Disputes
Redressal Forum, Sirsa.
