BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 258 of 2016.
Date of Institution : 28.9.2016
Date of Decision : 19.12.2017.
Raj Rani, aged about 45 years, wife of S. Panna Lal, resident of Street Balajee Nursing Home, Underneath the Railway Over Bridge, Hisar Road, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
- Dr. Mohar Singh Surgical & Maternity Hospital, Opp. New Bus Stand, Near National College, Adjoining Eicher Tractor Agency, Hisar Road, Sirsa through its Managing Director Mr. Mohar Singh Chaudhary.
- Dr. Vinay Poonia, MBBS, M.S., FAMS, FIAGES, Dr. Mohar Singh Surgical & Maternity Hospital, Opp. New Bus Stand, Near National College, Adjoining Eicher Tractor Agency, Hisar Road, Sirsa.
- The Oriental Insurance Company Limited, New Anaj Mandi Road, Opp. Janta Bhawan, Sirsa through its Branch Manager.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH.R.L.AHUJA………………. ……PRESIDENT.
SH. MOHINDER PAUL RATHEE………MEMBER.
Present: Sh. Amit Goyal, Advocate for the complainant alongwith complainant.
Sh. J.D. Garg, Advocate for opposite parties No.1 & 2 alongwith Dr. Mohar Singh op no.1.
Sh.K.L. Gagneja, Advocate for opposite party no.3.
ORDER
The case of the complainant in brief is that on 26.11.2015, the complainant developed abdominal pain and she alongwith her husband visited opposite party no.1/ hospital and consulted Dr. Vinay Poonia op no.2. The op no.2 advised for few blood tests and ultra-sonography of the abdomen. The complainant was admitted by op no.1 in the hospital as an indoor patient on 26.11.2015. The blood tests of the complainant were got conducted on 26.11.2015 and on 27.11.2015, the ultra-sonography of abdomen of the complainant was conducted from Garg Diagnostic Centre, Sirsa. In the ultra-sonography report of the complainant, it was observed by the doctor under “GB” “GB is well distended and show increased wall thickness measuring 3.5mm. Multiple calculi are seen in GB.” The doctor of said Diagnostic Centre also gave the impression that USG Abdomen reveals Hepatomegally with GR-I Fatty Lever. Cholelithiasis with chronic cholecystitis. It is further averred that op no.2 after going through the medical test reports of the complainant, op no.2 diagnosed that there are stones in the Gall Bladder of complainant and advised for removal of the Gall Bladder by way of surgical operation. The complainant and her family members were assured by op no.2 that after removal of the gall bladder of the complainant, the complainant will not get any such problem in future. On such assurance given by op no.2, the complainant and her family members gave consent for the said surgical operation. That on 27.11.2015, the op no.2 conducted the surgical operation on the complainant and after operation, the complainant and his family members were told that the gall bladder of the complainant has been removed. The complainant remained admitted in the hospital of ops up to 1.12.2015 and on 1.12.2015 she was discharged from the hospital by ops no.1 and 2. The ops no.1 and 2 charged a sum of Rs.25,000/- from the complainant as fee of operation and bed charges etc. Besides it, the complainant also incurred another sum of Rs.5,000/- on medicines and medical tests etc. It is further averred that thereafter on 3.8.2016, the complainant again developed pain in her abdomen and she visited Janta Maternity Hospital, Sirsa and consulted Dr. Ajay Chetal who advised for ultra-sonography of abdomen of complainant. On 3.8.2016, the complainant got conducted ultra-sonography of abdomen from Garg Diagnostic Centre, Sirsa and the doctor reported that “GB: GB is well distended and shows normal smooth walls. Multiple Gall Stones are seen largest of size 14mm.” The complainant presented this report to Dr. Ajay Chetal and on examining the report, he disclosed that there are stones in the Gall Bladder of complainant. The complainant was highly shocked and surprised to hear this because on 27.11.2015 she had undergone surgical operation for removal of her gall bladder. The complainant disclosed this fact to Dr. Ajay Chetal, whereupon, Dr. Ajay Chetal stated that as per report of ultra-sonography, the gall bladder is still in body of the complainant and that the same has not been removed. It is further averred that then on the same day, the complainant got conducted another ultra-sonography of her abdomen from other laboratory namely Vishal Ultrasound and Diagnostic Centre, Sirsa, the report of which is as follows “GB: GB is well distended and shows normal smooth wall thickness measuring (2mm). Multiple calculi seen in GB lumen. From this report, it was confirmed that the gall bladder was still in the body of complainant. Thereafter, on 8.8.2016, the complainant got her medically checked-up from Dr. (Mrs.) Subhashini, M.O., G.H. Sirsa and she advised USG abdomen and CT scan of gall bladder to rule out the stone. The complainant visited Agroha Medical College, Agroha, District Hisar for the C.T. scan. But the doctors of Agroha Medical College advised that for ascertaining the gall stone, there is no need for CT scan and that only USG is sufficient for the same. Upon which on 11.8.2016, the complainant got another ultra-sonography of her abdomen from Garg Diagnostic Centre, Sirsa and in the said report, it is stated that ‘GB: GB is well distended and shows normal smooth walls. Multiple gall stones are seen largest of size 12 mm. That in this manner, it is well established that the op no.2 did not conduct any surgical operation upon the complainant for removal of gall bladder from her abdomen rather she was falsely told that her gall bladder has been removed. Thus, the ops no.1 and 2 have been indulged in unethical medical profession, unfair trade practice and have played with the life of the complainant just with a view to extract money. It is further averred that ops no.1 and 2 charged a sum of Rs.25,000/- from the complainant as operation fee. Besides it, the complainant incurred another sum of Rs.25,000/- on medicines, tests, transportation charges etc. But all such expenses incurred by the complainant did not get any fruit to the complainant and she is still having the same pain, and suffering agony. So, the complainant is entitled to get the aforesaid amount from the ops. It is further averred that complainant was already suffering from abdominal pain since 26.11.2015 and since then he has been undergoing the pain but the above act and conduct on the part of ops no.1 and 2 have multiplied the pain and woes of the complainant. During this entire period, the complainant has undergone a lot of physical as well as mental pain and agony. So, the complainant is entitled to compensation on these counts from the ops to the tune of Rs.18,00,000/- alongwith other expenses incurred by the complainant on his surgery of gall bladder. It is further averred that now the complainant has undergone another surgical operation for removal of gall bladder on 5.12.2016 from Aadhar Hospital, Hisar and she has incurred a sum of Rs.50,000/- as surgery charges, medicine, room charges etc. and a sum of Rs.50,000/- on purchase of medicines, transportation and other expenses. The complainant had further undergone pain, mental stress, harassment, pecuniary loss and inconvenience, so she is also entitled to another sum of Rs.1,00,000/- on these counts from the ops. The complainant lodged her protest with the ops in this regard and thereby demanded refund of amounts incurred by her but they did not pay any heed and refused to do so. The complainant also moved applications to the police, civil surgeon, Sirsa and also to Indian Medical Association but no action has so far been taken against the ops no.1 and 2. Hence, this complaint.
2. On notice, opposite parties no.1 and 2 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 Raj Rani aged 45 years was admitted on 26.11.2015 with complaint of acute epigastric pain, USG showed multiple gallstones with increased wall thickness 3.5 mm with acute calculus cholecystitis. No guarantee, warrantee or any assurance was ever given to the patient for the complete cure. The patient was operated diligently, prudently with utmost due care and caution for laparoscopic, cholecystectomyon 27.11.2015. During surgery the ops found that there was gross swelling in the calot’s triangle due to gall bladder being adherent to the liver and surrounding inflammation so gall bladder was removed as much as possible to avoid CBD to injury. The same was duly explained to the patient party. There was no negligence, deficiency of service or unfair trade practice on the part of the ops no.1 and 2 in treating the said patient. The patient was discharged hale and hearty on 1.12.2015 with advice to follow up, but after that the patient lost to follow up and never turned up. It has been further asserted that complaint is an abuse of process of the law and of the Consumer Protection Act since it is uncalled for and that the litigation was indulged for no rhyme or reason just to harass the ops and yet this uncalled for consumer case is filed against ops no.1 & 2. It is further submitted that contents of para no.1 is not acceptable since complainant has filed a criminal case which is said to have been filed against him by the complainant for the same act. In the petition it has been asserted by the ops that it is the settled principles of law that when a criminal case before local police, civil surgeon, Sirsa is pending, the ops cannot be asked to disclose their defence because the same would prejudice the ops in the said criminal case and that no one can be vexed twice for the same act in view of the law of double jeopardy. Hence, a separate application is moved herewith to sine die this matter till the criminal case be decided. With these averments, dismissal of the complaint with costs has been prayed for.
3. On being impleaded as op no.3, the Oriental Insurance Company Ltd. filed written statement taking certain preliminary objections that complainant has no cause of action to file the present complaint against the answering op; that answering op is not liable to pay any compensation or to indemnify the ops no.1 and 2 as the answering op is only liable as per the terms and conditions of the policy. The present case is of fraud played by ops no.1 and 2 upon the complainant as is evident from the pleadings and documents placed on record and that present claim petition has been filed in collusion with ops no.1 and 2. It has been submitted that the documents placed on the records clearly show that ops no.1 and 2 did not perform the operation properly on 27.11.2015 and also did not remove the gall bladder of the complainant as is evident from the ultra-sonography done on 3.8.2016 and 11.8.2016. As per the version of ops no.1 & 2, the complainant was operated upon on 27.11.2015 and the gall bladder of the complainant was removed by the procedure of “Lap Choly” (Laparoscopic cholecystectomy) which means removal of complete gall bladder and not partial removal of gall bladder. Even in the discharge card, ops no.1 and 2 did not mention that partial gall bladder was removed. Therefore, answering op is not liable to indemnify the ops no.1 and 2 or to pay any compensation or expenses to the complainant as claimed by complainant.
4. The complainant produced her affidavit Ex.CW1/A and copies of treatment record and bills Ex.C1 to Ex.C49, copies of applications and postal receipt Ex.C50 to Ex.C54, copy of application Ex.C55, copy of ultrasonography report Ex.C56, photograph Ex.C57, CD Ex.C58, copy of application moved to Health Minister Ex.C59, copy of letter dated 16.9.2016 Ex.C65, copies of statements Ex.C66, Ex.C67, affidavit of Ashu Jain Ex.C68, copies of letters Ex.C69 to Ex.C71 and copy of prescription slip Ex.C72. On the other hand, ops No.1 and 2 produced affidavit of op no.1 Ex.R1, affidavit of op no.2 Ex.R2, copies of treatment record Ex.R3 to Ex.R13, copy of medical literature Ex.R14 and copies of certificates Ex.R15 to Ex.R18. OP no.3 produced affidavit of Sh. Sushil Kumar, Divisional Manager Ex.RW3/A, copy of policy cover note Ex.R19, copy of policy schedule Ex.R20, copy of terms and conditions of insurance policy Ex.R21 and literature Ex.R22.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. It is an admitted fact that Smt. Raj Rani complainant was suffering from abdominal pain and was admitted in the hospital of op no.1 on 26.11.2015 and remained admitted there from 26.11.2015 to 1.12.2015 and was operated upon on 27.11.2015 by op no.2. The complainant has claimed that she was advised for ultrasonography of abdomen besides other tests by the hospital authorities. Accordingly on 27.11.2015, the ultra-sonography of abdomen of complainant was got conducted from Garg Diagnostic Centre, Sirsa. In the report Ex.C6 it has been observed that “GB is well distended & shows increased wall thickness measuring 3.5 mm. Multiple calculi are seen in GB.” On the basis of this report, the opposite party no.2 decided to conduct operation of the complainant by adopting procedure of laparoscopic cholecystectomy for removal of gall bladder due to the stones on 27.11.2015. The complainant has claimed that at the time of conducting this surgical operation, the op no.2 had assured that after removal of the gall bladder of the complainant she will be relieved from pain. The complainant has further claimed that after the operation, the complainant and her family members were told that the gall bladder from the body of complainant has been removed. She has claimed that ops no.1 and 2 charged a sum of Rs.25,000/- from complainant as operation fee and bed charges and she had to incur another sum of Rs.5000/- on medicines and medical tests etc. The opposite parties No.1 & 2 have claimed that it was a difficult case of removal of gall bladder and in very difficult cases, the gall bladder is divided all around at its junction with the liver and the entire posterior wall of the gall bladder is left with the liver. They have relied upon the literature in this regard (copy of Laparoscopic Modified Subtotal Cholecystectomy page 649). They have further claimed in their written statements that no negligence or deficiency in service was there. Gall bladder was removed as much as possible to avoid CBD injury. This fact was explained to the patient party and patient lost to follow up and never turned up after the operation. On the other hand, the complainant has averred that unethical medical profession and unfair trade practice has been adopted by the ops as they did not disclose that gall bladder has not been removed completely. She has to go for another surgical operation on 5.12.2016 from Aadhar Hospital, Hisar and has to suffer mental pain, agony etc. due to the act and conduct of the ops no.1 and 2. In support of her claim, she has produced report of U.S.G. abdomen of Garg Diagnostic Centre, Sirsa dated 3.8.2016 i.e. after the operation conducted by op no.2 as Ex.C9. This report mentions that “GB is well distended & shows normal smooth walls. Multiple gall stones are seen largest of size 14 mm.” The report of Vishal Ultrasound & Diagnostic Centre dated 3.8.2016 placed on file by the complainant as Ex.C10 also mentions that “GB is well distended & shows normal smooth wall thickness measuring (2mm). Multiple calculi seen in GB lumen” and this report also confirmed the fact that gall bladder was still in the body of the complainant. The complainant has further placed on file report of USG whole abdomen dated 3.12.2016 of Aadhar Health Institute, Hisar which has confirmed that Gall Bladder is distended & shows calculi. CBD is normal and measures 6.5 mm.
7. As per documents placed on file, Raj Rani complainant was again operated on 5.12.2016 at Aadhar Health Institute, Hisar. The opposite parties have not rebutted the claim of the complainant in this regard. Opposite party no.1 Dr. Mohar Singh appeared in person today and contended that they have not been negligent while conducting the operation of the complainant and removal of complete gall bladder was not possible as it would have been fatal to the patient. He has further averred that the fact of partial removal of gall bladder was informed to the patient and her family members verbally but he admitted that this fact was not disclosed in writing. It is further observed from the record placed on file that complainant made complaints to the police authorities, Civil Surgeon, Sirsa, C.M. Window and also to Indian Medical Association. The Civil Surgeon, Sirsa based on the investigation report conducted by Dr. Subhashini, Medical Superintendent, Civil Hospital, Sirsa submitted report to the Director Health Services, Haryana, Panchkula that ops did not disclose the fact of partial removal of gall bladder of the complainant.
8. The opposite parties doctors have tried to explain that it was a difficult case of operation and hence procedure of laparoscopic cholecystectomy was adopted as per the medical literature but we do not agree with the ops in this regard and in our opinion the ops no. 1 & 2 should have adopted the method of open cholecystectomy instead of laparoscopic cholecystectomy in view of this difficult case. The complainant also appeared at the time of arguments and stated that after about nine months she again developed pain in abdomen and when she got performed second operation for removal of gall bladder on 5.12.2016 at Hisar and after second operation she is cured. From the report of Garg Diagnostic Centre, Sirsa dated 3.8.2016, it is evident that beside the gall bladder, multiple gall stones were seen largest of size 14 mm. The said report is after 8/9 months of the first operation of the complainant conducted by ops no.1 & 2 and this report as well as further reports make it clear that even if all stones were removed by ops no.1 & 2 at the time of operation in November, 2015, stones of such size of 14 mm. cannot develop in short period of 8/9 months. Hence, it is established beyond any doubt that gall bladder was partially removed and some stones were left there in the gall bladder. Further the fact of partial removal of gall bladder is admitted by the ops. As such we are of the considered opinion that complainant suffered pain, harassment, mental agony and financial losses due to the negligence of ops no.1 & 2, unfair trade practice and deficiency in service of ops and the complainant is entitled to compensation from the opposite parties. The authorities cited by learned counsel for ops no.1 and 2 in cases titled as Sultana Ram Vs. B.K. Chawla (Dr.) and anr. 2006 (3) CPJ 199 (NC), Manisha Dewan (Dr.) and another Vs. Kailash Kumari and another, 2014 (3) CPJ 434 (NC), Dr. Sanjay Gadekar Vs. Sangamitra, 2016 (3) CLT 14 (NC), the authority of Hon’ble State Commission Haryana in case titled as Amar Singh Sidhu (Dr.) & anr. Vs. Anuradha Rani and anr. 2012(4) CPJ 18 and authority of Hon’ble Punjab State Commission, Chandigarh in case titled as NIC Vs. Resham Singh and another 2016(2) CPJ 48 are not applicable to the facts and circumstances of the present case and are factually distinguishable. Learned counsel for ops no.1 and 2 also cited authority of the Hon’ble National Commission in case titled as B.H. Parmar Vs. Dodiya Manharbhai @ Manubhai, 2011 RCR (Civil) 625 (NC) in which 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 favour the case of the opposite parties No.1 & 2 because in the present case before conducting the operation, the ops doctors were having knowledge that gall bladder of the patient is of abnormal size which was revealed in the report of ultrasonography. So the said authority is also not applicable to the facts and circumstances of the present case.
9. Now we assess the quantum of compensation to be paid to the complainant and liability of the ops. The complainant has claimed that ops no.1 and 2 charged an amount of Rs.25,000/- from the complainant as fee of operation and bed charges and she also spent an amount of Rs.5000/- on medicines etc. but however the complainant has not placed any bill/ receipt in this regard. The complainant has also alleged that she incurred a sum of Rs.50,000/- as surgery charges, medicines etc. in Aadhar Hospital, Hisar and further spent another sum of Rs.50,000/- on purchase of medicines and transportation etc. In this regard, the complainant has placed on file copies of various medical bills but from the perusal of the same it is evident that complainant spent an amount of Rs.15,000/- approximately on the medicines. Further from the perusal of bill of Aadhar Health Institute, Hisar Ex.C49, it is revealed that a total amount of Rs.25,000/- was charged by that hospital which included admission charges, anaesthesia fees, equipment charges, medical supervision charges and surgery charges etc. So, in our considered opinion the complainant is entitled to the above said amount of Rs.40,000/- from the opposite parties which she had to incur on account of second operation and medicines and is also entitled to compensation and litigation expenses. Though, the op no.3 i.e. insurer of ops no.1 and 2 has categorically stated in its written statement about unfair trade practice adopted by ops No.1 & 2 while conducting the operation, but however, we are of the considered opinion that all the opposite parties are jointly and severally liable to compensate the complainant at first instance and will be at liberty to seek their respective claim against each other as per terms and conditions of the policy.
10. Thus, as a sequel to our above discussion, we allow the present complaint and direct the opposite parties to pay a sum of Rs.40,000/- to the complainant within a period of 30 days from the date of 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. 28.9.2016 till actual payment. We further direct the ops to pay a sum of Rs.10,000/- as compensation to the complainant for harassment etc. and a sum of Rs.5000/- as litigation expenses to the complainant. All the ops are jointly and severally liable to comply with this order. 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. President,
Dated: 19.12.2017. Member. District Consumer Disputes
Redressal Forum, Sirsa.
