Haryana

Ambala

CC/44/2021

Naibo Devi - Complainant(s)

Versus

Dr Tarsem Monga - Opp.Party(s)

Binderjeet Singh

17 Feb 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	44 of 2021
Date of Institution	:	21.01.2021
Date of decision	:	17.02.2023

 Naibo Devi aged 48 years wife of Sh. Ranjit Singh, resident of Vill. Thol, Distt. Kurukshetra.

          ……. Complainant

Versus

1. Dr. Tarsem Monga, Monga Hospital & Store Centre, Mahesh Nagar, Jagadhri Road, Ambala Cantt.
2. The Oriental Insurance Company Ltd. 4E, Azad Bhawan Jhandewal Extension, New Delhi.

   ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Binderjit Singh, Advocate, counsel for the complainant.

                     Shri Satinder Singh Garg, Advocate, counsel for the OP No.1.

                     Shri Rajeev Sachdeva, Advocate, counsel for OP No.2.

Order:         Smt. Neena Sandhu, President.

1.                The complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Party No.1 and later on by impleading Insurance Company as OP No.2, filed the amended complaint, praying for issuance of following directions to the OPs:-

1.  To pay Rs.10,00,000/- as compensation and Rs.1,00,000/- as damages for negligence while conducting operation of complainant with carelessness, deficiency in service for not providing proper treatment, medicines and for causing harassments, mentally, physically and financially loss to the complainant.
2. To pay Rs.11,000/- as cost of litigation.
3. Grant any other relief which this Hon’ble Commission may deems fit.

2.             Brief facts of the case are that the complainant had a Rasoli in her Uterus and as such, got herself admitted in the Hospital of OP No.1. OP No.1 operated the complainant on 1.12.2018 at about 10 a.m. After the operation, bleeding started from abdomen of the complainant, for which she remained admitted in OP No.1-hospital for 15-20 days, but nothing tangible came out. The complainant took medicines from OP No.1 for about 1/2 months but the bleeding did not stop and finally OP No.1 refused to give treatment to the complainant. The complainant paid a sum of Rs.20,000/- to the OP No.1 at the time of operation, Rs.2000/- for reports and Rs.2,00,000/- for admission and stay in the hospital for about 20 days for treatment and medicines etc. OP No.1 assured the complainant that he will remove the Rasoli from the Uterus of complainant without removing uterus, but despite assurance, OP No.1 at the time of operation, removed the uterus of complainant. Thereafter, the complainant got admitted herself in MM Hospital, Ambala City and the doctors of said hospital gave  her treatment and the complainant got relief and is feeling well but she is still under treatment and much more amount is likely to be spent by the complainant for her treatment, medicines and rich diet etc. Thus, there is deficiency in service and medical negligence on the part OP No.1 as he failed to take due care while operating the complainant for removal of Rasaoli from uterus without removing the uterus but he removed the uterus also.  Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version and raised preliminary objections with regard to maintainability, cause of action, bad for non joinder of insurance company as necessary party etc. On merits, it has been stated that OP No.1 is a qualified and experienced Surgeon, and is duly registered with the State Medical Council.  The present complaint is NOT supported by any EXPERT MEDICAL WITNESS on behalf of the complainant. The present complaint is not a simple and straight forward case as it involves highly technical knowledge to understand it. That the complainant has approached this Commission without support of any scientific evidence and has leveled bald allegations. On 18.11.2018, patient, the complainant came to Monga Hospital with excessive bleeding per vaginum i.e.. menorrhagia+metorrhogia for 6 months, and pain lower abdomen for 6 months. There was chronic foul smelling discharge per vaginum. The patient was thoroughly examined and it showed bulky uterus with fibroid, cervix was unhealthy. Patient was advised ultrasonography which showed fibroid uterus indenting the endometrium. Patient was advised hysterectomy. The patient went back to her home after saying that she will decide about it. Thus, medicines to stop the bleeding were prescribed for symptomatic relief. On 30.11.2018, the patient again came for surgery. The patient and her attendants were explained that she needs removal of her uterus, as recurrence of fibroid is common, and moreover patient's age is 48 years and her family was complete. Consent for surgery was taken in HINDI on the patient's case sheet which bears signature of the patient in HINDI and her son, Mr. Prince. All necessary tests were done which were within normal range. On 1.12.2018, the patient was admitted and PAC (Pre Anesthesia checkup) as done by Dr. Asha Monga, and found that the patient was fit for surgery. Her BP: 130/80 mm of Hg, Pulse: 76/min. Resp. Rate: 16/min. On 1.12.2018, Total abdominal hysterectomy with bilateral salpingo-cophorectomy was done by Dr. Tarsem Monga and Dr. SuchiKatyal. Uterus alongwith fibroid was removed. Post operatively patient was given Inj. Gentamycin 80mg BD, Inj. Aciloc BD, Inj Ampoxin 1gm TDS, Inj. Diclofenac I/M, and I/V fluids. Next day the patient was in stable condition. On 3.12.2018, the patient's general condition was good. BP: 130/80mm of Hg, Pulse: 76/min. Resp. Rate: 16/min. The patient was discharged satisfactorily on 6.12.2018 in stable condition. On 27.12.2018, the patient came with giddiness. The patient was examined and her Hb was 13.25gm. She was prescribed Tab. Stemetil. After that the patient never visited Dr. Tarsem Monga. As per record, the patient visited MM hospital on 19.2.2019 (after 3 months of surgery). Dr. Sanjay Agarwal prescribed her Tab. Roptril (ANTI-ANXIETY), Tab. Acin P (for BODY PAINS). Cap. Revit C (combination of Vit. B complex & Vit, C) and Ointment Indoxin plus for local application for burning pain. Thus, it is clear that she was treated for ANXIETY and general pains. She again visited Dr. Sanjay on 2.3.2019. Her urine culture test was done and she was again prescribed the same medicines for 5 days. After that she went there on 22.3.2019, and same medicines with Vit.D sachets were prescribed. Dr. Sanjay Agarwal advised the patient to consult Orthopedic Surgeon. Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint with exemplary costs.
4.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections with regard to maintainability, jurisdiction and bad for non-joinder and mis-joinder of necessary parties etc. On merits, it has been stated that the complaint against OP No.2 is not maintainable as there is neither any alleged negligence on the part of OP No.2 nor there is any deficiency in the service. OP No.1 i.e. doctor examined, diagnosed and treated the complainant diligently, as per accepted medical standards. It is incorrect that the complainant was told by OP No.1 that the only fibroid will be removed and the uterus will not be removed. The patient was explained about the surgery and consent for surgery was taken in Hindi on the patient's case sheet which bears signature of the complainant in Hindi and her son, Mr. Prince. The surgery was performed by the OP No. 1 after explaining the patient in detail about the procedure and after taking consent. There was no complication of the surgery. There is no negligence or deficiency in service on the part of OP No. 1 in treating the complainant. OP No.1 has given the best treatment to the complainant. OP No.1 took Professional indemnity Doctors policy from OP No.2 for the sum insured of Rs.20,00,000/- for the period from 02-02-2018 to midnight of 01/02/2019. As per 5 (b) terms and conditions of the policy is that "In the event of the non-renewal or cancellation of this policy either by the Company or by the insured, the company will allow a time limit not exceeding 90 days from the date of expiry or cancellation of the policy, provided no insurance is in force during this extended reporting period for the same interest, for notification of claims for accidents which had taken place during the period of insurance but could not be made during the Policy Period, provided however, all claims made during the extended reporting period shall be handled as if they were made on the last day of the expiring policy period and are subject to the limits of indemnity and the terms, conditions and exceptions of the policy". Rest of the averments of the complainant were denied by OP No.2 and prayed for dismissal of the present complaint with costs.
5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CA alongwith documents as Annexure C-1 to C-6 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OP No.1 tendered affidavit of Dr. Tarsem Monga, Monga Hospital & Stone Centre as Annexure RW1/A alongwith documents Annexure R-1 colly to R-3 colly and closed the evidence on behalf of OP No.1. Learned counsel for OP No.2 tendered affidavit of Ramesh Kumar, Manager, TP HUB/Authorized Signatory of The Oriental Insurance Company, LIC Building, Ambala Cantt as Annexure R-2/A alongwith documents Annexure R-2/1 to R-2/2 and closed the evidence on behalf of OP No.2. 
6.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that it was on account of medical negligence on the part of OP No.1 in treating the complainant, due to which she suffered lot of physical pain and agony, as a result of which, she was forced to take further treatment from MM Hospital, Ambala City. He further submitted that not only this, even despite the fact that it was assured by OP No.1 that uterus of complainant will not be removed while giving treatment of removing rasoli, yet, he removed the uterus, as such, OP No.1 is guilty of medical negligence and deficient in rendering service. The OP No.1 being doctor and OP No.2 being the insurer of the doctor, are thus liable to reimburse the amount which complainant had incurred on her medical treatment.
8.           On the contrary, learned counsel for OP No.1 submitted that except bald assertions, the complainant has failed to place on record any evidence to prove that there was any medical negligence on the part of OP No.1.  He further submitted that after giving treatment, on 3.12.2018, the patient's general condition was found good. BP: 130/80mm of Hg, Pulse: 76/min. Resp. Rate: 16/min and as such she was discharged satisfactorily on 6.12.2018 in stable condition. Thereafter, she took treatment of anxiety and general pain from some other hospital which is no way amounts to any medical negligence on the part of OP No.1 for the treatment given to her earlier. He further submitted that it was never assured that uterus will not be removed rather the patient and her attendants were explained that she needs removal of her uterus, as recurrence of fibroid is common and moreover patient’s age was of 48 years old and her family was complete and  the complainant gave her consent to OP No.1 to remove her uterus.  
9.           Learned counsel for OP No.2 submitted that since the complainant has failed to prove her case by way of placing on record any cogent and convincing evidence to hold OP No.1 medical negligent, as such, this complaint deserves to be dismissed, especially, when no allegations of deficiency in service have been leveled against OP No.2. 
10.           The complainant has contended that OP No.1 has not treated the complainant properly and as such, he is guilty of medical negligence. However, she neither has herself placed on record any such evidence to support her version nor has moved any application under the provisions of the Consumer Protection Act, 2019 before this Commission to refer the case to any Govt. Medical Hospital like PGIMER etc. for obtaining medical expert report in the matter. Even the affidavit of the Doctors of MM Hospital, who allegedly treated the complainant for any complication arising out to the treatment given by OP No.1 has not been placed on record by the complainant.  The mere fact that the complainant took some treatment for anxiety and general pains after getting treatment from OP No.1 cannot be made a ground to hold OP No.1 medical negligent or deficient in providing service.  The Hon’ble National Commission in the case titled as Dr. Harkanwaljit Singh Saini v. Gurbax Singh and Anr. 2003;(1) CPJ 153 (NC) has held that, "The Commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of an expert opinion or there is any medical treatise on which reliance could be based". In the present case, the complainant has produced, in support of her allegation, her own affidavit. This affidavit is no substitute for an expert medical opinion, to hold OP No.1 medical negligent or deficient in providing service to the complainant. Thus, when OP  No.1 has taken a specific plea to the effect that there was no medical negligence on his part, then it was the duty of the complainant to rebut the same by filing of some medical experts opinion or to file an application for obtaining medical opinion aforesaid, but she failed to do so.
11.           As far as the other plea of the complainant that though only rasoli was to be removed from the uterus of the complainant, yet, the OP No.1 removed the uterus without her consent. It may be stated here that not a single evidence in the shape of any consent of the complainant to the effect that only rasoli was to be removed and not the uterus, has been placed on record by the complainant. On the other hand, it is the definite stand of OP No.1 that the patient and her attendants were explained that she needs removal of her uterus, as recurrence of fibroid is common, and moreover patient's age is 48 years and her family was complete. This stand of OP No.1 stands fortified from the consent letter dated 01.12.2018, Annexure C-8, wherein a consent was given by the complainant for removal of her uterus. This consent letter has been signed by the complainant herself. Thus, in the face of this consent letter, Annexure C-8, the plea taken by the complainant to the effect that rasoli was to be removed from the uterus of the complainant, yet, by removing the uterus also, OP No.1 was medically negligent stands falsified .
12.           In view of the aforesaid discussion, we do not find any merits in the complaint filed by the complainant, consequently, we dismiss the same, without any order as to costs.  Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

 

 Announced:- 17.02.2023.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President