BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 72 of 2018
Date of Institution : 21.2.2018
Date of Decision : 26.09.2019
Bimla Devi wife of Sh. Jagdish Rai son of Sh. Harnam Singh, resident of Nezadela Road, Chattargarh Patti Sirsa, Tehsil and Distt. Sirsa.
……Complainant.
Versus.
1. Dr. Ramesh Dudi, M.S. (General & Lap. Surgeon) C/o Medicare Hospital Circular Road, near Shiv Chowk Sirsa, Distt. Sirsa.
2. The Oriental Insurance Company Ltd. through its Divisional Manager, Sirsa.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SHRI R.L. AHUJA……………….. PRESIDENT.
SHRI ISSAM SINGH SAGWAL……MEMBER.
SMT. SUKHDEEP KAUR……… MEMBER
Present: Smt. Sunita Verma, Advocate for complainant.
Sh. J.D. Garg, Advocate for opposite party no.1.
Sh. A.S. Kalra, Advocate for opposite party no.2.
ORDER
In brief, the case of complainant is that complainant is an old aged lady and is covered under the category of Senior Citizen of India. That the complainant suffered from gallstone calculus and as such she undergone medical checkup from the op no.1 being the Medical Surgeon and as per the advise of op no.1, the complainant got conducted ultrasound testing of the whole abdomen. The ultrasound was also got done by the complainant even from the diagnostic centre as referred by the op doctor. It is further averred that as per the ultrasound report, right kidney showed cyst of size 18x16 mm with speck of calcification in it, type of renal cyst. right kidney measures 11x4 cm left, left kidney measures 10x5 cm. The op doctor strictly advised for the immediate operation of the said problem and also preferred for the laparoscopy operation for the removal of stone, for which the complainant and her husband believing upon the op doctor agreed for the same and ultimately laparoscopy was done on 12.7.2017 and after that complainant was discharged from the hospital on 13.7.2017 and the op doctor also prescribed the medicines for next seven days. It is further averred that complainant took the medicines as prescribed by the op doctor but she was not feeling physical fitness and relief, hence the complainant went to the op for again medical check up and she stated to him that she is not feeling easy after the laparoscopy but the op doctor did not care and he in furtherance of his negligence prescribed the medicines for next ten days. That thereafter, the complainant and her husband detected that the region/ place where the laparoscopy surgery was done by op, the said area suffered infection and having yellow colour, upon which they approached the op and complained about the same. Then the op doctor took the complainant inside dressing room and when he inserted the medicated pin inside the area, there was oozing of blood and the op without any further investigation for the oozing of blood, simply done dressing on it and prescribed the medicines for next three days and assured for recovery with the medicines. It is further averred that then on 13.8.2017, the complainant alongwith her husband approached the op doctor and the op on seeing the condition of the wound, advised for the ultrasound of the abdomen. She got conducted ultrasound from Vishal Diagnostic Centre, Sirsa and the report of that centre was different from the report submitted by Ridhi Sidhi Diagnostic Centre. After that the op through the medicated scissor in the wound drawn out the liquid from the wound and then prescribed medicines for next five days and also advised for regular dressing on the wound. After inserting of scissor in the wound of complainant in the guise of drawing out the thick blood by the op, the condition of complainant became deteriorated day by day and she suffered intolerable pain in the wound. That thereafter, the complainant was taken to op doctor by her husband and when the op in the presence of husband of complainant opened the dressing, then on seeing the critical condition of the wound, he in Bagri language suddenly uttered “Oh Teri Saaro Kaam Bigad Gyo” and then the op doctor stated to the complainant and her husband that condition of wound has been deteriorated and another operation is needed. The husband of complainant requested to the op to consult with other doctor if the case is not under his control and he will pay for the same but the op stated that he had done more than 100 such like operations and he will do the same. Thereafter, the op called anesthesia on payment of Rs.500/- by husband of complainant and then the op gave open cut in the wound and done the operation. The op kept admitted the complainant in the hospital on 15/16.8.2017 and then on 17.8.2017, without any improvement in the condition of complainant discharged her from the hospital. However, the husband of complainant raised objection for this, but the op did not hear any request of complainant and her husband. It is further averred that thereafter because of open cut made by the op and oozing of blood continuously, her condition became more critical, hence on 18.8.2017, the husband of complainant took her at Narwana in the hospital of Dr. Manish Kansal, Surgeon by hiring the ambulance and on thorough checking of complainant, the said doctor Manish Kansal stated that due to failure of the operation done at Sirsa, the second operation is to be conducted on her, otherwise due to serious infection, it would be dangerous to the life of complainant. Dr. Manish Kansal done the operation of complainant and they incurred Rs.40,000/- for another operation done by Dr. Manish Kansal, which amount was arranged by her husband by getting pension loan and withdrawing pre-mature fixed deposit. After that Dr. Manish Kansal discharged the complainant advising regular dressing on the wound and as per advise by Dr. Manish Kansal, husband of complainant got discharged her and she was got admitted in Janta Hospital, Sirsa on 9.9.2017 where she undergone dressing etc. under the care of Dr. Sheetal Mehta, Surgeon and then she was discharged from the said hospital on 18.9.2017. After discharge also, the complainant got dressing from the said hospital. It is further averred that in this way due to the negligence and carelessness in the operation on the part of op doctor, the complainant has undergone lot of pain and suffering and much painful treatment and due to non disclosure about failure of operation firstly done by the op, the complainant has to undergo second operation and this negligence of the op doctor has rendered the complainant as patient of permanent suffering on account of repeated cut done in her abdomen. Hence, the complainant besides the refund of Rs.1,00,000/- incurred on her treatment including special diet, transportation charges etc. alongwith interest is also entitled for the amount of Rs.4,00,000/- as compensation for unnecessary harassment, humiliation, pain and suffering. That complainant and her husband however approached the op doctor and complained about the negligence committed by him, but the op did not pay any heed to the complaint and openly stated that they can do what they want. Hence, this complaint.
2. On notice, opposite party doctor appeared and filed written statement taking certain preliminary objections that no cause of action arose against the op in this case, no negligence or deficiency in services has been provided by the op to the patient and that complaint is bad for non arraignment and mis arraignment of parties. The op is insured with the Oriental India Insurance Company Ltd. vide professional indemnity bearing insurance policy no.272200/48/2017/13575, effective from 3.10.2016 to 2.10.2017 and that op is a well qualified and a reputed doctor with substantial good will and experience of long standing successful medical practice. On merits, it is submitted that patient Bimla Devi aged 60 years was admitted in the op hospital on 12.8.2017. The patient was diagnosed with calculus cholecystitis. On 12.8.2017, the patient undergone laparoscopic cholecystectomy after proper pre-operative examination and investigations. The patient was discharged on 13.01.2017, after seven days stitch removal was done. The patient was having no complaints. On 13.8.2017, the patient came in OPD for a check-up and pain epigastrium for which USG was done and no collection was diagnosed in the USG. The patient was examined properly. Port site having induration, but no collection on 15.8.2017. The patient again examined and USG was done. Small amount of collection lateral to port site was diagnosed for which the patient was admitted for I & D for collection done on 15.8.2017. No guarantee, warrantee, or any other assurance was ever given to the patient party. The patient was discharged on 17.08.2017 after draining and giving proper treatment was advised to follow up for dressing. The patient was in good general condition at the time of discharge. After that, the patient lost to follow up which is the sole negligence of the patient party. 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. It is further submitted that whatever is shown in the USG report, the only gallbladder disease was treated diligently, prudently with utmost due care and caution. The patient took treatment for some other illness which is not at all connected with the surgery done for gallbladder removal. All other contents of the complaint are also denied and prayer for dismissal of complaint made.
3. On being impleaded, the op no.2 Oriental Insurance Company Limited insurer of op no.1 appeared and filed written statement taking certain preliminary objections that complaint is not maintainable before this Forum as matter needs elaborate enquiry, evidence, cross-examination of witnesses and only thereafter finding can be arrived at with regard to the allegations leveled by complainant, more particularly when there is no report/ opinion of any expert, Board of doctors supporting the allegations leveled by complainant against op no.1. It is further submitted that without acknowledging and admitting any liability to indemnify the op no.1/ doctor, it is submitted that indemnification is governed by the term and conditions of insurance policy of the contract of insurance agreed in between insurance company and doctor and in this case there is willful and deliberate violation of term and conditions of the policy on the part of op no.1, as he failed to intimate answering op about receipt of summons from this Forum with allegation of careless, negligence and breach of trust, due to which answering op has been deprived with the early right of investigation into the matter, hence answering op is not liable to indemnify the insured due to violation of contractual obligation. The op no.1 doctor is required to produce on record valid and effective degree, licence for practice in the field as it is one of the requirement of the insurance norms. It is further submitted that a bare perusal of contents and record reflect the case of complainant to be the result of infection and infection can be the result of lapses, negligence in taking care of the wound by the complainant and other circumstances prevailing in the environment. It is further submitted that in absence of any expert opinion, merely on the basis of pleadings, it cannot be said that doctor acted without due diligence and there was/is any kind of carelessness, negligence on his part. It is further submitted that answering op has come to know about the filing of present complaint in the month of October, 2018 when answering op received the summons, hence for the delay in reporting any case against insured, answering op should not be burdened with any liability on account of interest for the pre-appearance period, if any is ordered to be paid by this Forum and only op no.1 should be burdened with the same. Remaining contents of complaint are also denied.
4. The parties then led their respective evidence.
5. We have heard learned counsel for the parties.
6. Learned counsel for complainant has filed written arguments in which it has been submitted that complainant suffered from gallstone calculus and approached the op doctor. On his advice, her ultrasound of whole abdomen was got conducted and thereafter laparoscopy operation was conducted by op doctor on 12.7.2017 and she was discharged on 13.7.2017. Thereafter, complainant again felt pain in her abdomen as a result of which she again approached the op doctor and on examining the complainant, infection was found in the region/ place where laparoscopy surgery was done by op. Dr. Ramesh Dudi on examination of complainant took her inside the dressing room and inserted medicated pin inside the area and there was oozing of the blood, but however, without any further investigation for oozing of blood, simple dressings were done and doctor prescribed medicines for next three days. Then again complainant approached the op doctor on 13.8.2017 with pain of abdomen and again ultrasound was got conducted. After that op doctor through the medicated scissor in the wound drawn out the liquid from the wound and then prescribed medicines for next five days. Again complainant was taken to op doctor and doctor opened the dressing and then on seeing critical condition of the wound, op in Bagri language uttered “Oh Teri Saaro Kaam Bigag Gyo” and then stated that wound has been deteriorated and another operation is required. Thereafter, again on the complaint of complainant, the op doctor called anesthesia on payment of Rs.500/- by husband of complainant and the op gave the open cut in the wound and done operation and then op kept admitted her in the hospital on 15/16.8.2018 and then on 17.8.2017 without any improvement in the condition of complainant discharged her from the hospital. Finding no result, the husband of complainant took her at Narwana in the hospital of Dr. Manish Kansal on 18.8.2017 and on thorough checking of complainant, he stated that due to failure of operation done at Sirsa, second operation is to be conducted on the complainant otherwise due to serious infection it would be dangerous for her and he charged Rs.40,000/-. After operation, Dr. Manish Kansal discharged the complainant from his hospital and thereafter complainant was got admitted in Janta Hospital, Sirsa on 9.9.2017 where she undergone the dressing etc. under the care of Dr. Sheetal Mehta, Surgeon till 18.9.2017. The complainant has claimed that in this way due to negligence and carelessness on the part of op doctor, complainant has undergone pain and lot of suffering and has claimed compensation. It has also been submitted that op doctor has filed written reply against the record as in para no.1 of the written statement, op no.1 just in order to mislead the Forum, mentioned the date of operation as 12.8.2017 instead of original date as 12.7.2017 and further mentioned the date of discharge as 13.1.2017 while she was actually discharged on 13.7.2017. The op wrongly stated that there was no complaint till 13.8.2017, while the fact remains that just after seven days, the complainant again approached Dr. Ramesh Dudi and complained about problem to her and then op prescribed medicines for next 10 days. In this way complainant has suffered intolerable pain in the wound. The doctor has acted in negligent manner and cheated the complainant.
7. On the other hand, learned counsel for op no.1 has strongly refuted the contentions of learned counsel for complainant. It has been contended that complainant has failed to prove and establish the allegations against op doctor. The complainant has not led any expert evidence in order to prove the fact that doctor Ramesh Dudi acted in negligent manner while treating and operating upon the complainant. Nor any expert opinion has been sought by this Forum during the pendency of the complaint in order to come to the right conclusion. It has also been contended that treatment was given to the complainant as per medical protocol. No guarantee or warrantee or any assurance was given to the patient’s party. After conducting laparoscopy surgery on the person of complainant, she was discharged in a stable condition. The infection is natural development after surgery. There is no negligence or lapses on the part of treating doctor. Learned counsel for op no.1 has relied upon judgments of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in cases titled as Kamlesh Sardana vs. Dr. Rajinder Singh Sihag and two others, RP No.3307/2014 decided on 24.5.2019, M.K. Chowdhury Vs. Max Super Specialty Hospital, (2017) 4 CPR 695, Irene Pais and others vs. Dr. Anil Pinto and another, (2016) 1 CPJ 176 and decision of Hon’ble Chandigarh State Commission in case titled as Veena Mahajan and ors. vs. Ved Kumar Gupta (Dr.) and Ors. (2008) 4 CPJ 419.
8. Learned counsel for op no.2 has strongly contended that there is no liability of op no.2. No doubt, there is an insurance contract between op no.1 and op no.2, but however, both the parties are bound by terms and conditions of the insurance policy. As per insurance policy, in case Op no.1 is found to be negligent in treating the patient, only then the op no.2 is liable to reimburse the loss or compensation to be paid by op doctor but since in the present case there is no negligence or lapse on the part of op no.1, as such op no.2 is not liable to pay any compensation or to reimburse any amount to op no.1.
9. We have considered the rival contentions of the parties and have gone through written submissions on behalf of complainant as well as judgments relied upon by learned counsel for op no.1.
10. The perusal of the record reveals that complainant in order to prove her allegations in the complaint has furnished her affidavit Ex.CW1/A in which she has deposed and reiterated all the averments made in the complaint. She has also furnished copy of application moved on C.M. Window as Ex.C1, ultrasound report dated 12.4.2017 Ex.C2, prescription slips Ex.C3, Ex.C4, ultrasound report Ex.C5, ECG Ex.C6, x-ray Ex.C7, prescription slip Ex.C8, laboratory test report Ex.C9, summary Ex.C10, testing for cardiac Ex.C11, prescription of medicines Ex.C12, ultrasound report Ex.C13, prescription slip Ex.C14, laboratory test report Ex.C15, laboratory test report Ex.C16, receipt of ambulance Ex.C17, post operative prescription slip of Saksham Multispeciality Hospital Ex.C18, bills Ex.C19 to Ex.C30, prescription slip of Janta Hospital, Sirsa Ex.C31, ultrasound report Ex.C32, further treatment record and bills Ex.C33 to Ex.C46, copy of letter for information under RTI Act alongwith statements Ex.C47 and copy of bank pass book Ex.C48. On the other hand, op no.2 produced affidavit of Sh. S.K. Malhotra, Divisional Manager as Ex.R1, copy of policy schedule Ex.R2 and indemnity cover Ex.R3. Op no.1 produced his affidavit Ex.R4 in which he has deposed and reiterated the averments made in the written statement and he has also furnished copies of his certificates Ex.R5, Ex.R6 and copies of indoor file Ex.R6 and Ex.R7.
11. It is undisputed fact between the parties that complainant was suffering from gallstone calculus and facing pain in her abdomen, as a result of which she approached op no.1 who prescribed to go for laparoscopy surgery on the gall bladder. In pursuance to the advice of op no.1, laparoscopy surgery was got conducted on the body of complainant while getting her admitted in the hospital of op no.1 on 12.7.2017 and after surgery she was discharged on 13.7.2017. Even after few days, the complainant again suffered pain in the abdomen and she approached op doctor who after examination prescribed some medicines, but however, the pain continued to persist in the abdomen of complainant and the complainant had been approaching time and again to op no.1 with complaint of pain in the abdomen. Even number of ultrasounds were got conducted from time to time in order to ascertain the cause of pain. Though after examination, op no.1 found that there is some infection in the wound after surgery and ultimately the wound was punctured and the blood was oozing from that wound, but however, the op no.1 again gave a cut on the second time in order to drain out the pus in the wound. But however, the pain continued to persist in the abdomen of the complainant though she again remained admitted in the hospital of op no.1 from 15/16.8.2017 to 17.8.2017 and ultimately she was taken to Dr. Manish Kansal’s hospital at Narwana on 18.8.2017 who advised to go for another operation as first operation conducted by Dr. Ramesh Dudi was failure. The complainant got conducted second operation from Dr. Manish Kansal and spent Rs.40,000/- as per allegation of complainant and thereafter she continued to get dressings from 9.9.2017 to 18.9.2017 at Janta Hospital at Sirsa.
12. The bone of contention between the parties is qua negligence and unfair trade practice on the part of op no.1. Though, op doctor has taken specific plea that he treated and conducted operation of laparoscopy on the person of complainant with due diligence and as per medical protocol and there is no negligence or deficiency in providing services to the complainant, but perusal of para number eight of the written statement of op no.1 reveals that it finds mention that patient Bimla Devi was admitted in the op hospital on 12.8.2017. The patient was diagnosed with calculus cholecystitis. On 12.8.2017, the patient undergone laparoscopic cholecystectomy after proper preoperative examination and investigations. The patient was discharged on 13.01.2017, after 7 days stitch removal was done. The patient was having no complaints. On 13.08.2017, the patient came in OPD for checkup and pain epigastrium for which USG was done and no collection was diagnosed in the USG. It appears from this para of the written statement that op no.1 is even negligent in mentioning the date of admission and operation as 12.08.2017 though complainant was admitted in the hospital on 12.7.2017 and the laparoscopic cholecystectomy was conducted on the same day and she was discharged on 13.7.2017 whereas op no.1 has mentioned the date of discharge as 13.01.2017. The op no.1 has mentioned all the dates in this para even against his own record. The perusal of the affidavit of Dr. Ramesh Dudi also reveals that he has mentioned same dates 12.8.2017 for undergoing laparoscopic cholecystectomy and date of discharge as 13.1.2017 in his affidavit Ex.R4 meaning thereby that Dr. Ramesh Dudi has not gone through his own written statement and has also not gone through his affidavit which he has furnished before this Forum as Ex.R4.
13. The record further reveals that op no.1 has mentioned in his affidavit that he has annexed the medical literature as Annexure R2, affidavit of expert witness as Annexure R3 and affidavit of eye witness related to the subject matters as Annexure R4, but however, the perusal of the record reveals that these documents have not been placed on record by op no.1 due to reason best known to him.
14. The perusal of the evidence of the parties reveals that there is no dispute qua the fact that complainant got her admission in the hospital of op no.1 on 12.7.2017 for undergoing laparoscopy surgery and she was discharged on 13.7.2017, but however, pain in her abdomen continued to persist till 18.8.2017 when she was taken to Dr. Manish Kansal at Narwana who conducted the second operation on the person of complainant. It is also proved fact on record that there was infection in the wound after the surgery which continued to be there for a long period of one month, but however, op no.1 did not make any effort to refer the patient to any higher institution, if he was not in position to control the infection in the wound. Nor the op no1 has placed on record any his detailed discharge summary on record. The perusal of discharge summary reveals that he has not mentioned about infection.
15. The record further reveals that husband of complainant Jagdish Rai had made a complaint on C.M. Window and thereafter matter was referred to the office of C.M.O., Sirsa and inquiry was ordered to be conducted by the Doctor of Civil Hospital, Sirsa. As per report sought under the RTI Act on 14.12.2017, it has been reported by the doctor concerned that “patient was operated for gall stones by laparoscopy on 12.7.2017 and was discharged on 13.7.2017, She suffered infection in epigastria port wound for which I & D was done on 10.8.2017. After which patient underwent dressings in different hospitals and is still under treatments. Infection after surgery is well known fact and wound healing depends upon general wound’s personal hygiene and wound care.” The copy of statement of Dr. Ramesh Dudi and copy of statement of Jagdish Rai son of Sh. Harnam Singh recorded by concerned doctor have been placed on file, but perusal of these statements reveals that these statements have not been attested by Enquiring doctor due to reason best known to him and he has not taken into possession medical record of the patient. He has not put any question to op doctor Ramesh Dudi regarding cause of infection in the wound and treatment given by doctor for infection of the wound. This all speaks that the inquiry conducted by the concerned doctor appears to be partial and same cannot be relied upon. We are of the opinion that doctor was negligent in treating the patient after development of infection in the wound and not referring the patient well in time to any higher institution and this amounts to unfair trade practice on the part of op doctor for not referring the patient to any higher institution. Since, it is a case of open and bare negligence and unfair trade practice on the part of op no.1, as such in our opinion, no expert opinion is required in this case and we find force in this regard from judgment of the Hon’ble Supreme Court in case titled as V. Kishan Rao vs. Nikhil Super Speciality Hospital & anr. 2010 (4) JT 630 in which it was laid down that “Claim of petitioners cannot be rejected only on the ground that expert witness was not examined to prove negligence of doctor. It is not required to have expert evidence in all cases of medical negligence.” The judgments relied upon by learned counsel for op no.1 are not applicable to the facts and circumstances of the present case as facts of these cases are quite different and distinguishable from the facts of present case.
16. In view of our above discussion, we allow this complaint and direct the opposite party no.1 to pay a sum of Rs.50,000/- as compensation to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @7% per annum from the date of order till actual payment. We also direct op no.1 to further pay a sum of Rs.5000/- as litigation expenses to the complainant. Since op no.1 has been found to be negligent and he has committed unfair trade practice, as such op no.2 being the insurer of op no.1 is liable to reimburse the above said amount to op no.1 and so op no.1 is at liberty to get the same reimbursed from op no.2 if same is payable as per terms and conditions of the policy. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:26.09.2019. Member Member District Consumer Disputes
Redressal Forum, Sirsa.
