Before the District Consumer Disputes Redressal Forum, Barnala.
Complaint Case No. : 187/2014
Date of Institution : 02.09.2014
Date of Decision : 01.02.2016
1. Gurjeet Singh aged about 32 years son of Shri Gurdev Singh resident of VPO Jodhpur, Tehsil and District Barnala.
2. Husanpreet Singh, aged about 6 months, minor son of Gurjeet Singh son of Shri Gurdev Singh resident of VPO Jodhpur, Tehsil and District Barnala under the Guardianship and through his father and natural guardian Gurjeet Singh son of Shri Gurdev singh resident of VPO Jodhpur, Tehsil and District Barnala.
Complainant
Versus
1. Dr. Abhishek Bansal Proprietor of Life Line Multispeciality Hospital, 25 Acre Extn., Near fountain Chowk Barnala.
2. Dr. M.S. Sethi Proprietor of The Surgical Hospital and Laparoscopy Centre, Tagore Nagar, Ludhiana.
3. Dr. Sat Pal Singh Dayanand Medical College and Hospital, Ludhiana.
4. United India Insurance Company Limited Savitri-1, First Floor, G.T. Road, Ludhiana District Ludhiana through its Divisional Manager/Branch Manager.
5. Dr. Rimpy Bansal, Life Line Multispeciality Hospital, 25 Acre Extn., Near Fountain Chowk, Barnala.
6. United India Insurance Company Limited, 42-C, 3rd Floor, Moolchand Commercial Complex, New Delhi-110024 through its Divisional Manager/Branch Manager.
7. The New India Assurance Company Limited , Branch Barnala.
Opposite parties
Complaint Under Section 12 of Consumer Protection Act, 1986
Present: Sh. PS Kaushal counsel for complainant.
- Sh. RS Sekhu counsel for opposite parties No. 1 and 5
Sh. RK Singla counsel for opposite party No. 2
Sh. Manmohan Singh counsel for opposite party No. 3
Opposite party No. 4 exparte
Sh. NK Singla counsel for opposite party No. 6
Sh. NK Garg counsel for opposite party No. 7
Quorum.-
1. Shri S.K. Goel : President
2. Shri Karnail Singh : Member
3. Ms. Vandna Sidhu : Member
ORDER
(MS. VANDNA SIDHU MEMBER):
As per amended compliant no. 187/14, complainant submitted that Kiranjit Kaur, wife of complainant no.1 and mother of complainant no. 2, complainant no. 1 had been getting his wife Kiranjit Kaur medically checked up from opposite party no. 5 from February 2013, onwards. U.S. For Evaluation of Foetal Growth-to rule out mal-formation was done by opposite party no. 5 on February 04, 2013, February 18, 2013, April 04, 2013 and said Kiranjit Kaur was admitted by opposite party no. 5 in the hospital namely Life Line Multi specialty hospital, 25 Acre Extn., near Fountain Chowk, Barnala on 02-09-2013 where she delivered a male child i.e. Complainant no. 2 on September 03-2013 through cesarian operation conducted by opposite party no.5 under the instructions and supervision of opposite party no.1. Thereafter said Kiranjit Kaur was, discharged by opposite parties no.1. And 5 from their said hospital on 07-09-2013 complaint no. 1 got said Kiranjit Kaur medically checked up from opposite party no.1 and 5 on 11-9-2013 . However , on 13-9-2103 when she stared taking solid food , she started suffering from pain , abdominal discomfort and vomiting. As such said Kiranjit Kaur was again taken by complainant no. 1 to the hospital of opposite parties no.1. And 5 on 13-9-2013 and 30-9-2013 for treatment . Opposite party no.1 did not supplied proper record of treatment of Kiranjit Kaur despite repeated requests.
2. Kiranjit Kaur could not get any relief at the hospital of opposite parties no.1 and 5 from her above ailment she was taken by complainant no.1 to opposite party no. 2 for treatment of the above said ailment and said Kiranjit Kaur remained under the treatment of opposite party no.2 and a number of tests were got done by opposite party no.2 and said Kiranjit Kaur was admitted by opposite party opposite party no.2 in his hospital on 18-11-2013 and said Kiranjit Kaur was diagnosed to have been suffering from internal hernia of small gut behind a jejuno -colic fistula , wrapped by omentum and partial omentectomy was done to relieve hernia by opposite party no.2 opposite party no.1 did not supply proper record of treatment of Kiranjit Kaur despite repeated requests made by complainant no.1.
3. When said Kiranjit Kaur did not get any relief even after the operation conducted / performed by opposite party no. 2. she was referred to D.M.C. And hospital , Ludhiana by opposite party no.2 on 23-11-2013 and said Kiranjit Kaur remained admitted in D.M.C. And hospital , Ludhiana from 23-11-2013 onwards for treatment and remained under the treatment of opposite party no.3 but expired there in D.M.C. And hospital , Ludhiana on 28-11-2013.
4. The cause of internal hernia was due to stitching of two veins together by opposite party no.1 .
5. The facts above go a long way to prove that the opposite parties have been negligent in treating said Kiranjit Kaur and as such there has been deficiency of service and unfair trade practice on the part of the opposite party which caused a great hardship , mental agony and irreparable loss to the childhood and complainant has lost his mother in his very childhood and complainant has lost his young wife due to the negligent act of the opposite parties . The complainant requested the opposite parties many a times to compensate the complainants for their acts of negligence , deficiency of Service , but with no result .
6. Complainant claimed the following relief. The opposite parties be jointly and severally directed to pay at least an amount of Rs. 15,00,000/- only to the complainants on account of death of Kiranjit Kaur.
(ii) To further pay an amount of Rs. 4,00,000/- only to the complainants on account of mental agony and harassment suffered by the complainants due to negligent, deficiency of service and unfair trade practice on the part of opposite parties
(iii) To further pay an amount of Rs. 10,000/-to the complainants on account of litigation expenses .
7. Jurisdiction The complainants are permanent residents of Jodhpur and the opposite party No.1 is running its business at Barnala which is within the territorial jurisdiction of this Forum .
8. Complainant requested for acceptance of the compliant and granted the relief with costs .
9. After admitting compliant , upon notice all the above stated parties appeared and made their version . Opposite party no. 1 Dr. Abhishek Bansal taken the objections of complainant interalia that the opposite party no . 1 is the proprietor of Life line Multi specialty hospital and is also the Managing Director of Hospital . The answering opposite party himself had not treated the patient Kiranjit Kaur rather one Dr. Rimpi Bansal (Dr. Megha ) has treated the patient who has also been arrayed as party to the complaint .On merits the opposite party no. 1 , submitted that as per record of the hospital it is admitted that LOWER SEGMENT CASEREN SECTION (LSCS) was done on patient Kiranjit Kaur on 03.09.2013. The LSCS was done by transverse incision (Horizontal ) in the lower abdomen Area . A male child weighing 2.8 kg was born to said Kiranjit Kaur . The patient had arrived on 02.09.2013 with pregnancy of 37 week 4 days and was admitted in the hospital vide admission no. 3965/13 .The patient has history of two abortions . Due to past history of the patient and labour pain inducement on 03.09.2013dt. 12.30 PM labour pain were induced again. But patient showed foetal distress, so LSCS was performed. The tests revealed that the child in the womb was having RH in compatibility i. e. Blood group of the child was same as that of father's blood group. This is no serious condition and the known treatment was administered by way of giving injection Anti-D to the patient. In post operative care on 4.9.2013 no bleeding was reported and patient reported healthy having normal recovery, which is indicative of success of surgery. Oral feeding of the patient was started and patient passed stool on 6.9.2013. Thus satisfied at the recovery and assessing the condition of the patient Kiranjit Kaur was discharged on 7.9.2013. The patient was provided with the discharge summary with brief notes and follow up treatment. The patient came on 11.9.2013 and her stitches were removed. The patient had no complaint whatsoever at the time. Similarly, the patient came again on one occasion before coming on 30.9.2013. The patient had been complaining of pain and vomiting. The patient was then administered IV fluids, antibiotics and analgesic. Tests were also got conducted which came normal. The hospital has diagnosed with QUERI GASTROTRITUS/QUERI intestinal OBSTRUCTION. The patient was relieved and was never admitted into our hospital on that day and the assistance was given only as an OPD patient and the record pertaining to OPD patient remain with the patient and thus arises no question of OP not providing the complainant with record or withholding the same. More so no specific date any such request, whether written or oral or to what record was demanded has been mentioned in this para. The patient Kiranjit Kaur never again approached the hospital with any complication. It will not be out of place to add here as well that the patient approached opposite party No. 2 only 18.11.2013 i.e after 1-1/2 months of 30.9.2013 treatment by answering hospital. Thus opposite parties automatically absolved of any wrong doing as has it been via-versa i.e. Patient developing complication of non treatment on 30.9.2013, the patient would not have survived till 18.11.2013. Moreover Dr. Rimpy Bansal is a well qualified gynecologist having MD Gynee-Obstruction as her qualification. Further Dr. Rimpy Bansal is having a vast experience of handling such cases during the span of 13 years of her carrier. Known and well adopted procedure of medical parlance regarding LSCS having adopted during the treatment of patient Kiranjit Kaur. Thus there arises no question of any negligence on the part of said doctor i.e Rimpy Bansal or even in case of the hospital.
10. Moreover it is submitted by opposite party No. 1 on merits that the patient Kiranjit Kaur had been efficaciously on 30.9.2013 by the answering hospital and she had thus been relieved of her temporary obstructions. Had patient Kiranjit Kaur being in serious condition on or after 30.09.2013, she would have immediately been moved to some higher institute for treatment but it is not the case ,which implies that the patient Kiranjit Kaur was not having any serious life threatening injury/conditions at or around or after 30.09.2014. Any alleged ailment could have been acquired by the patient Kiranjit Kaur when she underwent treatment from opposite party No. 2. It is submitted that jejuno colic festula occurs when there is abnormal joining of large and small intestine and the passage/normal process/functioning of small intestine is divested and the food is then directly passed into large intestine to some extent. The main symptoms of such ailment include mal nourishment, indigestion of food articles which pass directly into the large intestine resulting in Diarrhea and weight loss. It is pertinent to mention here that no such symptoms are reported in the OPD slip or discharge summary of opposite party No. 2. Furthermore it is highly improbable and has never been so reported in the medical history till date that a C Section surgery which is done by a horizontal incision can lead to jejunocolicfestula. It is submitted by the opposite party No. 1 that the complainant is not entitled for any relief qua the answering opposite party/hospital or even Dr. Rimpy Bansal in lieu of aforesaid submissions. Opposite party No. 1 made request for dismissed of the above stated complaint being devoid of any legal merit.
11. The opposite party No. 2 Dr. MS Sethi filed his version taking preliminary objections interalia on the ground that the complainant has totally failed to explain as to how he is involved and the respondent No. 2 was negligent. The present complaint is groundless, frivolous, scurrilous which is unsustainable in the eyes of law and it has been filed without justified reasons against the respondent No. 2 just to harass, defame and extort illegal sum of money from the respondent No. 2. Moreover it is also submitted in preliminary objections that no specific, scientific and justified allegations in regard to negligence or deficiency in providing services on the part of the opposite party No. 2. Although it is a fact that the respondent No. 2 has not committed any negligence in this case while providing the said treatment. This complaint is also not maintainable in the present form. It is also submitted by the opposite party No. 2 that the present complaint is bad for non joinder of necessary parties. The respondent No. 2 is insured with “United India Insurance Company Limited” through its error and omission policy vide policy No. 041200/46/13/35/00004974 effected from 01.11.2013 to 31.10.2014. On merits it is submitted by opposite party No. 2 that Ms. Kiranjit Kaur a 22 year old female patient was seen on 12 November 2013 with complaints of bilious vomiting, distension of abdomen and constipation. Her urine output was low and RFT was derange. The patient had history of LSCS 1-1/2 months ago with intermittent subacute intestinal obstruction. She was kept for a day or so and hydrated. The patient condition improved after a day or so and was sent back home on 14 November 2013. The patient came back on 18 November 2013. However, her bowel sounds were present, as per record. The patient was investigated, was given a unit of blood and a unit of I.V. Aminoacids. She was taken up for axploratory laparatomy on 20 November 2013. The small gut was collapsed, dilatation of jejunum was seen at 1.5 feet distal to DJJ, where it was looping in the gastrocolicomentum. The wrapped omentum over it was excised. And side to side jejuno-jejuno stomy done, creating a four inch stoma with free flow of contents to the distal loops. The an as tomosis was confirmed to be air and water tight. A drain was placed in the area and abdominal wall was closed . The operation was performed diligently , prudently ,with utmost due care and caution from 9.30 am to 1.30 p.m. Post operative , her pulse started rising on 22 nd night , with a suspicion of a leak by the morning . The attendants were sounded , and a request for transfer to DMC was made . The patient was shifted on 23rd November evening. During shifting her vital signs were stable, except for tachycardia. The patient remained afebrile throughout her stay of five days . Every thing the respondent no.2 has done was done diligently , prudently , with utmost due care and caution . The respondent no.2 says there was no negligence at least from his side .
12. It is submitted that respondent no.2 is not liable to pay any compensation to the complainant, as there is no deficiency of service and no medical negligence on the respondent no.2 part . Further it is submitted that the complainant may please be ordered by this Hon'ble Forum to pay Rs. 10,000/- under section 26 0f the Consumer Protection Act, 1986 for filing false and vexatious complaint. It is also submitted that proper jurisdiction with respect to the respondent no. 2 is Ludhiana not Barnala .
13. Opposite party 3 filed version and taken objection interalia that the opposite party no.3 is running its hospital at Ludhiana .The treatment was give to the complainant at Ludhiana. No cause of action or part of cause action has occurred to the complainant within the jurisdiction of this Hon'ble Forum. Even otherwise neither the permission of this Hon'ble Forum has been taken nor the answering opposite parties acquieced under Section 11 (2) (b) of the Consumer Protection Act 1986 to the trying of the complaint at Barnala. The present complaint is bad for non joinder of necessary parties. Opposite party No. 3 Dr. Satpal Singh serving as a Professor and Head, Department of Gastro Surgery in Dayanand Medical College and Hospital. The hospital is run and managed by managing society registered under the Societies Registration Act. The said society has not been impleaded as a necessary party to the present complaint. The complainant has failed to specify as to what ought to have been done and what has not been done by the answering opposite party while treating the complainant. In the absence of any such particulars no case of deficiency in rendering the is made out. It is further submitted by opposite party No. 3 that no basis of damages has been disclosed by the complainant. It is settled principle of law that basis of damages have to be disclosed. The complainant has failed to disclose the basis of damages as to how the same have been calculated. This preliminary objection is also taken by the opposite party No. 3 that the compensation claimed has been based on surmises and conjectures besides being inflated with an ulterior motive and sheer greed and the remedy under the Consumer Protection Act has been made cheap just with a greed to get monetary gains as no court fee is payable on the filing of the complaint. The present complaint has been filed only with a view to extract money from the answering opposite party on false and frivolous allegations. The respondents have treated the patient in accordance with the prescribed medical norms and to the best of their ability. It is also further submitted by the opposite parties that the complicated question of law and facts are involved in the present case which cannot be decided in the summary proceedings. The controversy in dispute requires voluminous oral and documentary evidence which can only be lead in the civil court and examination and cross examination has to be conducted for elucidating the facts which can be done only before the civil court. Therefore, the complaint is to relegated to the remedy of filing a civil suit in civil court. The proper treatment and care was given to the patient during the course of her admission in the hospital of the answering opposite parties by the well qualified medical and para medical staff as per medical norms. On merits it is submitted by opposite party No. 3 that the present complaint is admitted to the extent that the patient Kiranjit Kaur did not get any relief after operation conducted by opposite party No. 2 i.e. Dr. MS Sethi, Proprietor of the Surgical Hospital and laparoscopic Centre, Ludhiana who referred the patient Kiranjit Kaur to the DMC and Hospital on 23.11.2013. The said Kiranjit Kaur remained admitted under the treatment of Dr. Satpal Singh, Professor and Head Department of Gastro Surgery of DMC and Hospital. During admission Proper treatment and care was given to the patient by the answering opposite party hospital by the well qualified medical and para medical staff as per prescribed medical norms, but the patient expired on 28.11.2013. However every effort was made to provide the best treatment to the patient Kiranjit Kaur and medical protocol was followed. Life and death are in the hands of God and destiny cannot be changed. It is also mentioned by opposite party No. 3 that doctor always work on the principle “I treat, He cure”. It is also submitted by opposite party No. 3 that present complaint is not maintainable against the answering opposite party.
14. It is submitted in version by opposite party No. 3 on merits that the factual position is that patient Kiranjit Kaur underwent cesarean section in September 2013 at private hospital, Barnala which she had developed inter mittent pain abdomen and vomiting. Patient of sub acute intestinal obstruction, which was operated on 20th September 2013 for jejunocolic fistula with internal herniation by opposite party No. 2 i.e. Dr. MS Sethi of Ludhiana. The surgery done was reduction of hernia with jejunojejunostomy with primary closure of transverse colon. On a third post operative day patient was referred to answering opposite party i.e. Dr. Satpal Singh, Professor and Head, Department of Gastro Surgery with complaint of abdominal drain showing discharge of feacal matter. It is also submitted by opposite party No. 3 in detail in regard of treatment given by the answering opposite party to the patient Kiranjit Kaur that on 23.11.2013 patient Kiranjit Kaur aged 22 years female wife of Gurjit Singh resident of VPO Jodhpur, District Barnala was referred by opposite party No. 2 i.e. Dr. MS Sethi and was admitted in emergency vide CR No. 2013-183959 by her husband in Department of Gastro Surgery with chief complaints of pain abdomen and fecal discharge from the abdominal drain place. On admission her vital signs were as follows: pulse was high 130/min (normal is 60-90/min), while oxygen saturation were 95%. It is also mentioned by Dr. Satpal Singh that on examination there were tenderness with guarding and rigidity (signs suggestive of peritonitis). Pre-operative diagnosis of fecal fistula with anastomotis leak with generalized peritonitis was made, blood samples were taken and sent for investigation. Patient was planned for reexplorative surgery in view of generalized peritonitis with raised lecocyte count (17900). It has been provided in the text book of Schwartz's Principles of Surgery 9th addition chapter 6 surgical infection page No. 125 that leakage from a GI anastomosis leading to post operative peritonitis or tertiary (persistent) peritonitis. Even with effective antimicrobial agent therapy, this disease process is associated with mortality rate of excess of 50%. After informed consent and explaining poor prognosis of patient and even the risk of death of the attendants on 23.11.2013 at 7.30 PM patient was shifted to emergency operation theater.
Intraoperatively:
1. There was anastmotic dehiscence of jejuno jejunal anastmosis.
2. Dehiscence at colocolic anastomosis
3. Fecal material present in the peritoneal cavity, which is source of infection leading to septicemia.
Procedure performed:
1. Resection of dehiscent jejuna anastmosis with fresh end to end jejuno jejunal anastmosis.
2. Distal to its feeding jejuno stomy done.
3. Loop ileostomy done
4. Reinforcement of colocolic anastomosis done
5. Peritoneal lavaje and drainage done
Postoperative: 23.11.2013 patient was shifted to surgery recovery and put on high doses of antibiotics and i/v and contamination in the peritoneal cavity.
24.11.2013 (first post operation day), 25.11.2013 (second post operation day), 26.11.2013 (third post operation day), 27.11.2013 (fourth post operation day), 28.11.2013 (fifth post operation day), in summary of 5th post operation i.e. On 28.11.2013 it is submitted by opposite party No. 3 that general condition of patient was serious and she was still on ventilator. Patient was febrile and having tachycardia. In between episodes of tachycardia, patient had an episode of bradycardia leading to cardiac arrest at 9.50 AM CPR (cardio pulmonary Resuscitation) started as per hospital protocol but patient could not be revived and was declared dead at 10.15 AM on 28.11.2013. It is submitted by opposite party No. 3 that best possible treatment was provided to patient but inspite of all efforts she could not be survived. As per version by opposite party No. 3 there is no negligence on part of answering opposite party rendering the treatment. It is also submitted that the complainant has to produce the strict proof to prove his claim. It is also submitted that the conditions specified Section 11 (2) of the Consumer Protection Act 1986 have not been fulfilled and the answering opposite party has been impleaded by the complainant only to harass and extract money by illegal means. Opposite party No. 3 also requested for dismiss the complaint.
15. In reply filed by the opposite party No. 5 preliminary objections have been taken interalia on the ground that the answering opposite party insured under professional indemnity insurance policy No. 36130136120400000017, which was valid from 24.10.2012 to 23.10.2013 being issued by the New India Assurance Company Limited Barnala. The said insurer has already been impleaded as party to the complaint. On merits it is submitted by opposite party No. 5 that LSCS was done on patient Kiranjit Kaur on 3.9.2013. The LSCS was done by transverse incision in the lower abdomen area. A male child weighing 2.8 Kg was born to said Kiranjit Kaur. The patient was admitted in the hospital vide admission No. 3965/13. The patient had history of two previous operations because of past history of the patient induction of labour pains door on 3.9.2013. During induction of labour pains patient had non progress of labour factal distrees so LSCS done. Patient reported healthy having normal recovery, which is indicative of success of surgery. Known treatment was administered by giving injunction Anti-D to the patient. Oral feeding was started and patient passed stool on 6.9.2013. Thus satisfied at the recovery and assessing the condition of the patient was discharged on 7.9.2013. The patient was provided with the discharge summary with brief notes and follow up treatment. The patient had no complaint at the time of removing her stitches on 11.9.2013. Similarly, the patient came again on one occasion before coming on 30.9.2013. The patient had been complaining of pain and vomiting. The patient was then administered IV fluids, antibiotics and analgesic as an OPD patient. Tests were also got conducted which came normal. The hospital has diagnosed with QUERI GASTRITUS/ INTESTINALT OBSTRUCTION. The patient was relieved and never admitted in our hospital on that day and the assistance was given only as an OPD patient and record pertaining to OPD patient remain with the patient and thus arises no question of OP not providing the complainant with record or withholding the same. More so, no specific date of any such request, whether written or oral or as to what record was demanded has been mentioned in this para. The patient Kiranjit kaur never approached the hospital with any complication , the same being also the case of the complainant in this regard .It will not be out of place to add here as well the patient approached no.2 only 18.11.2013 i.e. Patient developing complication of non treatment on 30.9.2013 . Moreover ,answering opposite party is well qualified Gynaecologist having M.D. Gyanee / Obst. As her qualification . Further answering opposite party is a having a vast experience of handling such cases during the span of 13 years of her carrier . Known and well adopted procedure of medical paralance regarding LSCS have been adopted during the treatment of patient Kiranjit Kaur. It is submitted that there is no negligence on part of opposite party no .5. It is submitted that patient Kiranjit Kaur had been efficaciously on 30.9.2013 by the answering hospital and she had thus been relieved of her temporary obstruction. It is further mentioned by opposite party No. 5 that had patient Kiranjit Kaur been in serious condition on or after 30.9.2013, she would have immediately be removed to some higher institute for treatment but it is not the case. Which implied that Kiranjit Kaur was not having any serious life threatening injury/conditions at or around or after 30.9.2013. Any alleged ailment could have been acquired by the patient Kiranjit Kaur when she underwent treatment from opposite party No. 2. It is submitted that jejunocolic fistula occurs when there is abnormal joining of large and small intestine and this lead to passage of undigested food from small to large intestine directly. The main symptoms of such ailment include mal nourishment, indegisation of food particles which pass directly into the large intestine resulting in diarrhea and weight loss. No such symptom are reported in the OPD slip or discharge summary of opposite party No. 2. Furthermore it is highly improbable and has never been so reported in the medical history till date that a C section surgery which is done by a horizontal incision can lead to jejunocolic festula and opposite party No. 5 requested for dismiss the complaint.
16. The opposite party No. 6 filed reply taking preliminary objections interalia on the ground that complaint is not maintainable, bad for mis joinder and non joinder of necessary parties and concealed material facts from the Forum and have filed the present complaint after concocted a story just to abuse the process of law. Complainants have not come to this Forum with clean hands. Complainant does not disclose any cause of action against the answering opposite party. Neither the alleged deceased nor the complainants was/are the consumer(s) the answering opposite party. It is further objected by the opposite party No. 6 that this Forum has got jurisdiction to entertain and try the present complaint against the answering opposite party. On facts of version it is submitted by opposite party No. 6 that the above stated complaint is denied for want of knowledge as no intimation regarding alleged admission, tests, treatment and operation of the wife of the complainant No. 1 by opposite party No. 2 was ever given to the answering opposite party. It is also submitted that no intimation was given to answering opposite party regarding reference of the wife of the complainant No. 1 by opposite party No. 2 to D.M.C.. and Hospital, Ludhiana was ever given to the answering opposite party. It is also submitted by opposite party No. 6 that regarding the death of wife of complainant No. 1 no intimation was received by answering opposite party, from anyone whosoever. It is mentioned by opposite party No. 6 on facts that the answering opposite party being insurer of opposite party No. 2 has ever been negligent in treating Kiranjit Kaur. Opposite party No. 6 also made denial regarding this fact that Kiranjit Kaur was ever treated by the answering opposite party at any point of time. It is also submitted by opposite party No. 6 that no deficiency of service has been occurred on the part of answering opposite party. The above stated party also made request to dismiss the complaint.
17. The opposite party No. 7 also filed reply taking preliminary objections interalia on the ground that complaint is not maintainable in the present form and complainant has no cause of action and locus standi to file the present complaint against the answering opposite party. Complainant has not come to this Forum with clean hands and deliberately suppressed the material and relevant facts from this Forum. It is also submitted by opposite party No. 7 that complainant has dragged the answering opposite party into unnecessary litigation by filing the false and frivolous complaint with an ulterior motive of extracting money from the answering opposite party. Complaint is bad for non joinder of necessary parties, the disputes and issues raised in complaint involves intricate question of law and facts and matter involved is complicated one, which requires extensive evidence and cross examination of witnesses and same cannot be decided in summary proceedings. It is also submitted by opposite party no. 7 that complainant is not a consumer as per Consumer Protection Act and the Hon'ble Forum has got no jurisdiction to try and entertain the present complaint. It is also submitted on facts by opposite party No. 7 that there is no privity of contract of answering opposite party with the complainant, so the complaint is not maintainable against the answering opposite party and the relief claimed by the complainant does not fall under the terms and conditions of the insurance policy. The answering opposite party is not liable to pay any claim to the complainants because opposite party No. 5 has breached the terms and conditions of the policy and the claim falls under the exclusions as per terms and conditions of the policy, the insured shall give written notice to the opposite party No. 5 insurance company as soon as reasonable practicable of any claims made against the insured (or any specific event of circumstances that may give arise to a claim being made against the and which forms the subject of indemnity under the policy and shall give all such additional information as the company may require. It is further mentioned on facts by opposite party No. 7 that every claim, writ, summons or process and all documents relating to the event shall be forwarded to the company immediately they are received by the insured but in this case no such information has been given by the opposite party No. 5 to answering opposite party. So the replying opposite party is liable to pay any claim. The liability if any, will be to the extent of limit of indemnity mentioned in the policy and that shall be subject to exclusions, conditions of the policy. On merits, it is submitted by opposite party No. 7 that complainant fails to prove any evidence in the negligence of opposite party No. 5. Opposite party No. 7 also made a denial due to want of knowledge that Kiranjit Kaur was admitted by opposite party No. 5 in hospital namely Lifeline Multi Specialty Hospital, Barnala on 2.9.2013 .Opposite party no. 7, also refused on this fact that Karamjit kaur delivered a male child on 03.09.2013. and caesarean operation conducted by opposite party no.1 under the instruction of opposite party no.5 . Opposite party no.7 also refused that Karamjit kaur medically checked up from opposite party no. 1 & 5 on 13-09 -2013 for treatment. The complainant must be put to strict proof to prove the facts regarding negligence and wrong treatment of opposite party no. 5. It is further submitted by opposite party No. 7 that any treatment if given by opposite party No. 2, the answering opposite party has no concern with opposite party No. 2. Opposite party No. 7 refused on this fact that Kiranjit Kaur was diagnosed who has been suffering from internal hernia of small gut behind Jejuno Colic Fistula, wrapped by OMENTUM. Opposite party No. 7 also refused on merit that opposite party No. 1 has not supplied record of treatment of Kiranjit Kaur to the complainant. It is refused by opposite party No. 7 for want of knowledge that Kiranjit Kaur was referred to DMC Hospital Ludhiana on 23.11.2013 and remained under the treatment of opposite party No. 3. It is further mentioned by opposite party No. 7 that it has no concern with opposite party No. 3 being an insurance company. It is refused by opposite party No. 7 that any hernia was caused due to stitching of two veins together by opposite party No. 1. It is further submitted that complainants are totally failed to prove any negligence of opposite party No. 5 and refused by the opposite party No. 7 that the opposite party No. 5 is negligent in treating Kiranjit Kaur. Opposite party No. 7 also mentioned that there is no deficiency in service and unfair trade on the part of answering opposite party and refused that complainants have suffered any mental agony and irreparable loss. Further, it is submitted that complainants have concocted false story against the opposite party No. 5 just to get the claim and filed false complaint against the answering opposite party. From the facts of the complaint it is clear that the complainants themselves have not knowledge that who is negligent in the opposite parties. Before filing the amended complaint the complainants have not uttered a single word against the opposite party No. 5 in the complaint. After that the complainant concocted a false story against the opposite party No.5 and involves the same in the complaint just to grab false claim. The complainants also totally failed to produce any medical record of opposite party No. 5. If the complainants failed to produce any medical record against the opposite party No. 5 then complainants have no cause of action to file the present complaint against the answering opposite party and opposite party No. 5. Opposite party No. 7 further mentioned on merits in its version that Dr. Rimpy Bansal (Mega), M/s Lifeline Multi Specialty Hospital 25 Acre, Extension, Near Fountain Chowk, Barnala is insured under the professional indemnity insurance (Doctor) policy No. 36130136120400000017 subject to terms and conditions of policy which is valid from 24.10.2012 to 23.10.2013. The terms and conditions alongwith policy supplied to the Dr. Rimpy immediately. It is further submitted that neither complainants nor opposite party No. 5 informed the replying opposite party regarding any claim of the complainants. Therefore, the answering opposite party has no liability to pay the claim if any. It is further submitted that complainants have not produced any medical record with relates to opposite party No. 5. The documents mentioned in this para has not proved any negligence of opposite party No. 5. The complainants have not supplied any document to answering opposite party.
18. It is further submitted by opposite party No. 7 that complainants have not entitled to get any relief and complaint is liable to be dismissed with costs of Rs. 20,000/- as the complainants dragged the answering opposite party in an unnecessary litigation. It is further submitted by opposite party No. 7 that if this Hon'ble Forum come to conclusion that there is any liability of opposite party No. 5 then only the opposite party No. 5 is liable to pay the same.
19. In support of their complaint complainants tendered into evidence Ex. C1 copy of birth certificate, Ex. C2 & C3 copy of ultrasound report dated 04 .02.2013, Ex. C4 &C5 copy of ultrasound report dated 18.2.2013, Ex.C6 copy of Lab report dated 15.03 2013 , Ex. C7 copy of blood report dated 05.03 2013, Ex. C-8 &C-9 copy of ultrasound report dated 04.04.2013, Ex. C-10 Copy of Lab report dated 03-06-2013, Ex.C-11 & 12 copy of ultra sound report dated 26.08.2013, Ex. C-13 copy of Lab report 05. 09 2013 , Ex. C-14 copy of Lab report dated 05 .09 .2013, Ex.C-15 copy of Lab report dated 30.09.2013, Ex.C-16 to C-18 copy of MRI scan report, Ex. C-19 copy of prescription slip, Ex. C-20 copy of pathology report dated 22.10.2013, Ex.C-21 copy of clinical heamatology report, Ex. C-22 copy of Serology report, Ex. C-23 &24 copy of Bio chemistry report, Ex. C-25 copy of Urine Examination Report , Ex. C-26 copy of X Ray report, Ex. C-27 & 28 copy of Blood Examination Report, Ex. C-29 copy of Lab report dated 25.10.2013 , Ex. C-30 copy of X Ray report dated 5.11.2013, Ex.C-31 copy of X Ray report dated 11.11.2013, Ex.C-32 copy of digital X-Ray report, Ex. C-33 and Ex. C-34 copy of Medication sheet, Ex.C-35 copy of histopathology report, Ex. C-36 copy of Discharge slip, Ex. C-37 copy of report dated 22.11.2013, Ex. C-38 copy of report dated 23.11.2013, Ex.C-39 to Ex.C-71 copies of reports, Ex. C-72 copy of death certificate, Ex.C-73 affidavit of complainant Gurjeet Singh and close the evidence on behalf of the complainant.
20 In order to rebut the evidence of complainants the The opposite party No.1 tendered in evidence Ex.OP-1/1 affidavit of Dr. Abhishek Bansal and closed their evidence by order vide order dated 29.9.2015. The opposite party No. 2 tendered in evidence Ex.OP-2/1, copy of degree Ex.OP-2/2 affidavit of Dr. MS Sethi, Ex.OP-2/3 copy of renewal certificate, Ex.OP-2/4 copy of insurance policy and closed the evidence. The opposite party No. 3 tendered in evidence Ex.OP-3/1 affidavit of Dr. Satpal Singh Virk , Ex.OP-3/2 copy of patient file containing pages 1 to 176, Ex.OP-3/3 to Ex.OP-3/5 copy of medical reference, Ex.OP-3/6 affidavit of Dr. Virk Garg, Ex.OP-3/7 affidavit of Dr. Shiba Takkar Chabbra, Ex.OP-3/8 affidavit of Dr. Anil Kashyap, Ex.OP-3/9 affidavit of Dr. Jaspal Singh and closed the evidence on behalf of opposite party No. 3. The opposite party No. 5 tendered in evidence Ex.OP-5/1 affidavit of Dr. Rimpy Bansal, Ex.OP-5/2 copy of registration certificate of additional medical education, Ex.OP-5/3 copy of registration renewal certificate, Ex.OP-5/4 copy of certificate (Doctor of Medicines), Ex.OP-5/5 copy of certificate of participation and closed their evidence by order vide order dated 29.9.2015. The opposite party No. 6 tendered in evidence Ex.OP-6/1 affidavit of Balwinder Singh, Ex.OP-6/2 copy of policy and closed the evidence. The opposite party No. 7 tendered in evidence Ex.OP-7/1 affidavit of M.C. Dhawal, Ex.OP-7/2 copy of insurance policy, Ex.OP-7/3 copy of terms and conditions and closed the evidence.
21. First of all, the objections which were raised by the opposite parties regarding that complainants no.1 and 2 are not consumers. As per entire medical record and arguments it is considered that patient was treated by opposite party no.5 in the hospital of opposite party no.1 and they are running private hospital where medical fee is deposited by the patient/relatives. And hospital of opposite party no. 2 is also a hospital where the deceased Kiranjit Kaur got the treatment. So, objection regarding 2 (1) (d) is meaning less in this complaint.
22. Another objection regarding jurisdiction was taken by opposite parties. Opposite parties no. 1 and 5 are running their hospital at Barnala and op. no. 5 has obtained insurance policies from opposite party no. 7. Moreover opposite parties no.1 and 2 not only running their hospital but also residents of Barnala. Because as per Section 11 complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, the opposite parties, actually and voluntarily resides or (carries on business or has a branch office ) or personally works for gain, provided that in such cases either the permission of the District Forum is given, or the opposite parties who do not resides or (carry on business or have a branch office ) or personally work for gain, as the case may be acquiesce in such institution. Therefore, the objection regarding jurisdiction is untenable.
23. Third objection is that compliant is bad for non joinder of necessary parties as it was objected by opposite party no. 3. D.M.C is run and managed by Managing Society registered under The S.R. Act (Societies Registration Act 1860). As per view of this Forum, it is pertinent to mention here that as per Ex. C-36 i.e. Discharge slip of patient and she was referred to deptt. of Gastro Surgery, D.M.C. and H for expert management under Dr. Satpal M.C.h., so if Dr. has made party by name there is no fault of non joinder of necessary parties because here specific name of Dr. has mentioned by Dr. M.S.SETHI, who is also party no. 2 in the above stated complaint.
24. Fourth objection is regarding maintainability of the present compliant. So, as per the view of this forum after reading the facts and entire medical record this complaint is maintainable as the patient has been dealt by the opposite parties.
25. As per further analysis minutely by this forum in regard of the entire medical record, cesarian operation done by opposite party no. 5, in the hospital of opposite party no.1 of patient named Kiranjit Kaur on 2-9-2013 and a male child was born. Now Kiranjit Kaur is dead. On 11-9-2013 her stitches were removed. On 30-9-2013, she again visited the hospital and did complain about pain and vomiting. The patient was relieved and never admitted on that day by the opposite parties and the assistance was given only as an O.P.D. patient. Further, it was submitted on merits by opposite party no.1 and 5 that during treatment from opposite party no.2 any alleged ailment could have been acquired by the patient Kiranjit Kaur when she underwent treatment from opposite party no. 2.
26. So, here arises one issue in the mind of this Forum, that how opposite party no. 5 can skip from her liability. It is a gross negligence of opposite party 5 that on 30.9.2013 when patient complaining about pain,why they did not admit her or referred the patient to any superior hospital as they knew past medical case history of the patient. She came on hospital on 30-9-2013 and opposite party no. 5 treated her as O.P.D. Patient why she was not readmitted and moreover, cesarian operation was conducted by the O.P. No. 5. And opposite party No. 5 knew her case history but opposite parties no.1 and 5 did not admit her and treated her as O.P.D. Patient. Moreover patient was taking treatment since Feb. 2013 from opposite party no.5, when Dr. Rimpi Bansal knew the case history very well. She did not referred immediately to D.M.C. or P.G.I. or any superior medical hospital to her. Blood vessel of patient combined slowly which converted in the shape of Glutton. It is very astonished fact that as per complaint Dr. Abhishek Bansal who is party no.1 and Dr. Rimpi Bansal opposite party no. 5 did not supply record of treatment to the complainant. Moreover, opposite party no.1 and 5 themselves submitted that patient was diagnosed with QUERI GASTRITUS/QUERI INTESTINAL OBSTRUCTION. Again, the reason which is submitted on merits by opposite party no. 1 was very vague. Opposite parties no.1 and 5 submitted on merits and argued that patient approached opposite party no. 2 only 18-11-2013 i.e. one and half month of 30-9-2013, after taking treatment by opposite party no. 5. Further it is also submitted by the opposite parties No. 1 and 5 that opposite party No. 5 is automatically absolved of any wrong doing as has it been via-a-versa i.e. Patient developing complication of non-treatment on 30-9-2013, the patient would not have survived till 18-11-2013. On the other side, as per version on merits, it is submitted by Dr. M.S. Sethi who is opposite party no.2, that patient was diagnosed on 12-11-2013, with complaints of bilious vomiting, distension of abdomen and constipation. Here one thing came in knowledge of this forum that the patient had a history of LSCS i.e.(LOWER SEGMENT CASEAREAN SECTION)one and half month ago with INTERMITTENT SUBACUTE INTESTINAL OBSTRUCTION. It is, submitted by opposite party no. 2 that patient came back on 18-11-2013. The small gut was collapsed, dilatation of Jejunum was seen at 1.5 feet distal to D jj, where it was looking in the Gastrocloic omentum. Further it is also submitted in the written version that the wrapped omentum over it was excised. And side to side Jejuno-jejunostomy done, creating a 4 inch stomach with free flow of contents of the distal loops. The anastomosis was confirmed to be air and water tight. A drain was placed in the area and abdominal wall was closed. The operation was performed diligently. So, as per analysis of the above stated submission by opposite party No. 2 this fact came before this forum that one small Gut was collapsed and this small Gut did not create in one night.
27. As per discussion C section surgery is very dangerous and is a serious matter for child who is in abdomen and for mother also. It is not a normal delivery. Here arises another issue whether Dr. Rimpi Bansal opposite party no. 5 was negligent to perform L.S.C.S. operation.
It is held by the Hon'ble National Commission in case titled Ravnit Kaur Bal (Dr. ) Vs. Varinderjeet Kaur reported in Consumer Protection Judgments Vol-IV December 2015 Page-383 as under.-
Consumer Protection Act Section 2 (1) (g), 14 (1) (d), 21 (b)- Medical Negligence-LSCS Operation-Patient Developed VVF- Doctor not qualified- Deficiency in service-District Forum allowed complaint-State Commission dismissed appeal-Hence revision- Medical records from other hospitals where patient took treatment clearly reveal that after LSCS the patient developed VVF-OP1- doctor who had performed LSCS operation was not qualified to do so- OP1 also failed to diagnose concealment of bladder injury- OP1 fraudulently concealed material facts-Negligence proved.
28. The opposite party No. 5 has miserably failed to prove that she had taken all the precautions and followed the procedure as prescribed by the medical jurisprudence while conducting the said operation and post operative care. Therefore, the opposite party 5 is held to be negligent.
29. As per considering the entire record which is submitted by opposite party no. 2, some questions arises before this Forum-
(a)that this type of diagnosis which is called Laparatomy, why did not take up by opposite party no. 2 named Dr. M.S.SETHI on 12-11-2013 and why they did so hurry to discharge to the patient on 14-11-2013. So, this is also a gross negligence on the part of opposite party 5 as well as no. 2 also. Moreover after laparatomy opposite party no.2 operated her. Here is again question arises why opposite party no. 2 could not referred the patient to D.M.C. or any superior hospital. As to why opposite party no.2 took rash step to operate patient himself, when she had critical condition.
30. It is also astonished fact came in the evidence that as per merits enumerated in version submitted by opposite party no.2, that hospital attendants (nurses) made request on 22nd night of Nov. 2013 to transfer patient in D.M.C. But she was transferred on 23-11-2013 in evening and patient expired on 28-11-2013 in DMC Ludhiana.
31. Moreover, it is not wrong to mention here that as per Ex. C-16 of dated 22-10-2013, patient was referred by M.S.SETHI for USL WHOLE ABDOMEN to Dr. Gurdeep and Dr. Sandeep. And doctor Gurdeep Singh as per Ex. C-18 of 22-10-2013 gave report about SUBACUTE INTESTINAL OBSTRUCTION and Ex.C-19 also shows that patient had been taking treatment of Doctor M.S.SETHI since 22-10-2013.
32. So, as per view of this forum, the version taken by opposite party no. 2 is not consistent as the same is differ from the documents which were tendered by the complainant. As per Ex. C-16, 18, 19 patient was under treatment and supervision of Dr. M.S.SETHI prior to 12-11-2013. And as per Ex. C-18 when report has come about health of patient (now deceased) here is also one question arises that why Dr. M.S.SETHI took the decision so late. Ex. C-36 which is discharge slip of patient (deceased) wife of complainant No. 1 in which it is specifically mentioned in summary of disease that Bowel Sounds were weak. Again it is elaborated in Ex.C-36 under para of investigations that A conservative management was adopted with relieved her obstruction. She was readmitted a week later with similar symptoms.
Now these investigations under discharge slip i.e.Ex.36 is a clear cut negligence on the part of opposite party no.2 that is why she was readmitted a week later and why she did not properly treated by opposite party no.2 or referred for better healing or improvement to D.M.C. as soon as possible. So, Ex. C-36 is an important document in this record.
33. Again it is pertinent to mention here that Opposite party no. 2 referred to patient on 23-11-2013 in evening not immediately on night of 22 of November inspite of requests were made by attendants to transfer patient. So, here is a breach of duty also on the part of opposite party no.2 as per facts which are mentioned by opposite party no. 2 himself in his written version, on his medical and factual facts.
34. So, as per the view of this forum the opposite parties No. 5 and 2 not acted as per medical standards of practice and in the above stated matter opposite parties no. 2 and 5 have failed to do post operative which requires after a major operation. So, we find negligence and breach of duty in the diagnosis or surgery or treatment of patient named Kiranjit Kaur now deceased.
35. Dr. M.S.SETHI is insured with United India Insurance Company Ltd. as per Ex.O.P.6/2 for the period 1.11.2013 to 31.10.2014 i.e. Opposite party no. 6 and opposite party no. 5 is also insured with opposite party no.7 vide policy Ex. OP 7/2.
36. As the result of above discussion the opposite parties No. 2 and 5 are held negligent and the present complaint is allowed accordingly. Keeping in view the nature of the case this Forum is of the view that ends of natural justice shall meet if the opposite parties No. 2 and 5 are made liable to pay Rs. 1,00,000/- (One Lac) each to the complainants. As both the said parties are insured therefore the liability will be paid by the respective insurance companies to that extent. The complainant No. 1 also entitled to Rs. 2,100/- as litigation expenses which will be also paid by the respective insurance companies jointly and severally. The complainant No. 1 is entitled to Rs. 50,000/- and the minor child is entitled Rs. 1,50,000/-. However, the share of the minor child is to be invested in the FDR in some Nationalized Bank till he attains the majority. Compliance of the order be made within 30 days from the date of the receipt of this order. If the payment is not made within 30 days from the date of order, then the complainants are entitled to interest at the rate of 10% per annum from the date of order till realization. Copy of this order be supplied to the parties free of costs. File be consigned to the records.
Announced in open Forum
1st February 2016
(S.K. Goel)
President
(Karnail Singh)
Member
(Vandna Sidhu)
Member
