DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. ComplaintNo.122/16.07.2007 Decided On : 18.09.2008. Som Parkash S/o Sh.Kundan Lal S/o Sh.Sohan Lal, 42 years old, Shopkeeper, resident of One Way Traffic Road, Mansa. .... Complainant. Versus Dr.T.S.Nagpal C/o Nagpal Super Specialist Hospital, Mall Road, Bathinda. .... Opposite Party. Complaint under Section 12 of the Consumer Protection Act, 1986. .... Present: Sh. S. K. Singla, counsel for complainant. Sh.Amandeep Kansal, counsel for Opposite Party. Before: Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER: Sh. Som Parkash (hereinafter called as the complainant) has filed this complaint against Dr.T.S.Nagpal (hereinafter called as Opposite party) for seeking compensation to the tune of Rs.4,00,000/- as expenditure incurred on his operation, medicines etc and Rs.50,000/- as compensation along with Rs.20,000/- as litigation costs. Brief facts of the case are that on 3.1.2007 when the complainant felt certain trouble in his stomach, he approached Dr.Amritpal at Mansa and got himself admitted in Amrit Nursing Home. On 4.1.2007 ultrasound was conducted upon the complainant from City Centre, Mansa and its report revealed stone in the gall bladder of the complainant. The complainant approached the OP doctor on 8.1.2007 at Bathinda for undergoing laproscopy. Upon believing the reasonable competence and requisite skill of the OP doctor, he got himself admitted and his operation Contd........2 : 2 : was conducted by the OP on receipt of payment as consideration of Rs.16,000/- as fee. The receipt was never provided to the complainant. The complainant was discharged from the hospital on 10.1.2007 and he, according to the advise of the doctor, started taking the medicines. After 10.1.2007, the complainant did not see any improvement in his health and rather felt certain body ailments. When the complainant again approached the OP doctor and apprised him about his health conditions, the doctor advised him to continue the prescribed post operative medicines. When the condition of the complainant did not improve and started deteriorating, he got conducted jaundice test from Modern Laboratory, Mansa on 2.2.07. The complainant was surprised to see the report when he came to know that he was suffering from jaundice to the extent of 5.4. He immediately approached the OP doctor and on his advise he got conducted the endoscopy on 5.2.2007. This report revealed that a piece of tissue has remained in the intestine which need a second surgery. The complainant got stunned and approached D.M.C.,Ludhiana on 8.2.2007and got himself admitted there. On the same day different tests viz MRI/CT Scan were conducted upon the complainant. The complainant was mentally disturbed when he came to know from the above reports that while doing surgery the OP doctor had applied double stitches which resulted in firstly blocking of the CBD pipe and thereafter narrowing of the said CBD pipe. Detailed report had been provided by the DMC, Ludhiana in this regard. The OP doctor had not performed the operation with due care and as such was negligent towards performing his duties. Due to the act and conduct of the OP, the complainant had to undergo the surgery once again and had to remain bed ridden for further five months and had to incur near about Rs.1,50,000/- on his treatment. The complainant had become disabled which has resulted into business loss, which further caused mental as well as physical harassment to him. Hence this complaint. In reply to the complaint filed by OP certain legal objections Contd........3 : 3 : have been taken to the effect that complaint is not maintainable; complaint needs elaborate oral and documentary evidence hence liable to be dismissed, complaint is bad for non joinder of necessary parties, the complainant has not attached the requisite treatment record and that the complaint is frivolous. On merits, it was admitted to the extent of the problem of gall bladder stone. It was contended that after the surgery of gall bladder stone complainant was discharged in walking condition and he was absolutely normal at the time of discharging and he was advised to follow up on 5 days and was further advised to take medicines. After five days complainant again came to the OP for removal of stitches but he never complained regarding any complication and after the removal of the stitches complainant never came to the OP. It was further contended that till the removal of the stitches complainant was not suffering from jaundice. The replying OP had never conducted endoscopy in his career and complainant with malafide intentions have alleged that the OP had advised him for second surgery on the ground that piece of tissue has remained in intestines. When the complainant never approached the replying OP after removal of stitches, the question of conducting endoscopy or advising re-surgery does not arise. It was further contended that since surgery of gall bladder stone was conducted by way of renowned procedure of laparoscopy, which does not involve any stitches inside the body on gall bladder, thus question of double stitches does not arise. The replying OP did not even touch the pipe because there was no need to touch the pipe and as such question of narrowing of any pipe by any act of the OP does not arise. The complications alleged by the complainant cannot be connected to the surgery conducted by the replying OP nor any where in the record of the DMC it has been mentioned that the narrowing of pipe has happened due to surgery of gall bladder conducted by the replying OP. It was denied that there was any negligence on the part Contd........4 : 4 : of the replying opposite party in performing his duties. All other allegations were denied categorically and a prayer for dismissal of the complaint with special costs was made. Both the parties have led their respective evidence in the shape of affidavits and documents. We have considered the arguments advanced by the learned counsel for the parties and carefully scrutinized the entire evidence placed on record. From the allegations in the complaint, it is abundantly clear that the complainant has alleged negligence on the part of OP doctor in performing laparoscopy operation (surgery of gall bladder stone) upon him on 8.1.2007. Exhibit C-5 is the discharge card of the complainant issued by Nagpal Superspeciality Hospital, Bathinda in this regard. The OP has denied in its reply that any payment was received by him without issuance of any receipt and the complainant is not its consumer. There is no force in this argument of the learned counsel for the OP. It is not the case of the OP that his hospital is a charitable hospital and the operations are performed by the OP doctor free of costs. It is clear from Ext.C-5 that complainant had undergone treatment from OP. Thus conducting of laparoscopy operation upon the complainant without taking any consideration from him cannot be possible. Therefore, it is clear that the complainant must have given some consideration (Rs.16,000/- as alleged by him in his complaint) to the OP for performing laparoscopy operation upon him. The complainant is thus held to be the consumer of the OP. To support his stand, the complainant has further placed on record the report of Modern Computerized Laboratory (Ext.C-3) in which S.Bilirubin result on 2.2.07 is shown as 5.4 Mg/dl. There is another Bio Chemistry Test Report of the Nagpal Super Speciality Hospital, Bathinda (Ext.C-7) in which S.Bilirubin result is shown as 5.0 Mg/dl. The normal range of S.Bilirubin is shown as 0.2-1.0 mg/dl in this report. The Contd........5 : 5 : complainant has further argued that on the advise of the OP doctor he got conducted endoscopy on 5.2.2007. This report revealed that a piece of tissue has remained in the intestine which necessitated a second surgery. The complainant had vehemently argued that while operating for Gall bladder stone by the OP doctor and while stitching, it has been double stitched which resulted in firstly blocking of the CBD pipe and thereafter narrowing of the said CBD pipe. Thereafter complainant approached D.M.C.,Ludhiana on 8.2.2007 and got himself admitted there. On the same day different tests viz MRI/CT/Scan were conducted upon the complainant. The MRI report Exhibit C-9 opined Proximal CBD Stricture. It has been further mentioned in this report as under: The study shows near total narrowing of the proximal CBD. The length of the stricture measures 9mm in length and is seen to form at a distance of 4.3mm from the confluence. The distal portion of the CBD however is normal. The visualized intra-hepatic biliary radicals are mildly prominent. Gall bladder is not visualized (consistant with h/o cholecystectomy). Exhibit C-10 is the Medical Certificate issued by DMC, Ludhiana in which it is clearly mentioned that the complainant remained admitted in this hospital in the department of Gastrosurgery w.e.f. 8.2.2007 as a case of CBD Stricture (Post Cholecystectomy) and discharged on 20.2.2007. Exhibit C-5, Discharge Card issued by OP clearly reveals that Laproscopic Cholecystectomy operation was performed by the OP upon the complainant on 10.1.2007. For this, the complainant remained admitted in his hospital w.e.f. 10.1.2007 to 13.1.2007. Simultaneously is Exhibit C-10 which reveals that complainant remained admitted in DMC in the department of Gastrosurgery w.e.f. 8.2.2007 to 20.2.2007 as a case of CBD Stricture (Post Cholecystectomy). He was operated upon by the DMC on 13.2.2007. From both these reports it can be well judged that the complainant had to undergo two surgeries within a period of one month. Contd........6 : 6 : One surgery was conducted by OP doctor on 13.1.2007 for Cholecystectomy and the other surgery was conducted by the DMC on 13.2.2007 as a case of CBD Stricture (Post Cholecystectomy). The complainant was subjected to the second surgery due to negligence on the part of the OP doctor in performing the first surgery with due care and caused him untold sufferings. The OP doctor was supposed to do in the best interest of the patient, but in this case it is not so. In support of his contentions the OP Doctor has placed on record affidavit (Ext.OP1) in which he has deposed in para No.8 that after the surgery of gall bladder stone complainant was discharged in walking condition and he was absolutely normal at the time of discharging and he was advised to follow up on 5 days and was further advised to take medicines. After five days complainant again came to the OP for removal of stitches but he never complained regarding any complication and after the removal of the stitches complainant never came to the OP. The OP has further deposed in para No.10 of his affidavit that surgery of gall bladder stone was conducted by way of laparoscopy, which does not involve any stitches inside the body on gall bladder, thus question of double stitches does not arise. On one hand the OP doctor is saying that after the removal of stitches complainant never came to him or complained regarding any complication and on the other hand he is deposing that question of double stitches does not arise. The report Exhibit C-9 of the DMC shows near narrowing of the proximal CBD and is suggestive of proximal CBD stricture. Keeping in view the report of the DMC (Ext.C-9) we are of the view that at the time of applying stitches by the OP doctor the possibility of damage to the CBD cannot be ruled out which resulted in total narrowing of the proximal CBD and the DMC vide its above referred MRCP report supports this view by giving a finding which suggested Proximal CBD Stricture. The OP counsel has relied upon Asha Vs Dr.Santokh Singh Contd........7 : 7 : Proprietor, 1998 (2) CPC 172 Pb vide which it had been held that no expert evidence proved, doctor not liable for deficiency in service. The law does not help the OP in any way because in the present case the report of DMC (Ext.C-9) dated 10.2.2007 can be treated as an expert evidence vide which it had been clearly opined Findings suggestive of Proximal CBD Stricture and the complainant was subjected to the operation ( second surgery) on 13.2.2007 by the DMC on the basis of this report as a case of CBD Stricture (Post Cholecystectomy). There is no need to obtain any further expert opinion. It is a crystal clear case that there was total failure on the part of the OP doctor in exercising adequate care while operating upon the complainant. When the condition of the complainant did not improve but also further deteriorated after the performing of Laproscopic Cholecystectomy operation by the OP doctor , the complainant was forced to take treatment in DMC Ludhiana by spending a lot of money. In support of his allegations the complainant has further placed reliance on Ext.C-11 to C-40, copies of different bills and expenses incurred by him on admission fee, Anesthesia fee, operation fee etc at the DMC Ludhiana. The OP has not rebutted these bills produced by the complainant in support of his allegations. The OP doctor has placed on record only Ext.OP-1, his own affidavit. The point of jurisdiction was raised by the learned counsel for the OP only while arguing the case. But in the written version, there is no mention about this. The OP doctor cannot be allowed to take advantage of its own wrong, as such, we do not feel inclined to go with this argument of the OP counsel. From the facts and circumstances and the record available, it is held to be a fit case of medical negligence on the part of the OP because he did not exercise his skill with reasonable competence. Due to this negligence on the part of OP, the complainant was forced to again take treatment in DMC Ludhiana by spending a lot of money. The OP doctor Contd........8 : 8 : was supposed to attend the complainant, his patient with due care, skill and diligence, which was not done. As regards the quantum of compensation is concerned, act and conduct of the OP doctor must have caused the complainant mental tension and untold sufferings for which he deserves compensation which we assess as Rs.1,50,000/- on account of undergoing two surgeries one at Nagpal Superspeciality Hospital, Bathinda and the other at DMC, Ludhiana including different tests and other expenses incurred on his treatment. This amount also includes loss of business to the complainant. Resultantly, the complaint is allowed and the OP doctor is directed to compensate the complainant by paying an amount of Rs.1,50,000/- on account of expenditure incurred by him on his treatment, mental tension and business loss. The OP doctor is also burdened with Rs.3,000/- as litigation costs. Compliance of the order be made within two months from the date of receipt of the copy of the order which shall be supplied to the parties free of charges under the rules and file be arranged, indexed and consigned to record. Pronounced: 18.09.2008 Neena Rani Gupta, Sarat Chander, Member. Member.
