Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor MaharanaPratap ISBT Building, Kashmere Gate, Delhi

 

Ms Meenakshi Kapoor w/o Shri Rahul Kapoor

Resi.of H.No. 52/18 Old Rajender Nagar, 

New Delhi -110060 …Complainant

OP1-Dr. Ajay Prakash

OP2 Dr. Blossom Prakash

Both at : Shanti Ved Hospital, 49, Old Vijay Nagar, 

Agra-282004 ...Opposite Party

 

Coram: Date of Order:           04 09.2024

Shri Inder Jeet Singh, President

Ms Rashmi Bansal, Member -Female

 

Inder Jeet Singh , President

 

It is scheduled today for order (item no.20)

 

1.1. (Introduction to case of parties)-  The complainant has grievances of medical negligence, want of care or deficiency of services against OP1 and OP2 regarding her diagnosis and treatment by them. She seeks amount of Rs.10,96,868/- for expenses incurred and further expenses to be incurred; compensation of Rs.5,00,000/- in lieu of harassment, agony, deficiency of services, unfair trade practice besides other appropriate relief.

1.2 The OP1 and OP2 opposed the allegations of complaint by filing their separate defense versions that neither there is any medical negligence nor want of care nor deficiency of services, since all protocol were followed while examining the complainant-patient, two doctors operated her with all due care, the complainant was well informed of issue involved  in advance, the consent form was also furnished by her and her husband and, prompt steps were taken which was needed. The complainant knew about the issues involved, since had medical history, other hospital Sir Ganga Ram Hospital had also rendered advance advices to the factors involved, which she had concealed in the complaint. The complainant's husband got her discharged to take her to other Centre, otherwise the issue could be settled with due course of time since she was under treatment.  The complainant was provided with complete details for her onward follow up/process. The complaint is without cause of action. 

 

2.1. (Case of complainant) -Briefly, the complainant had undergone cesarean section for delivery of baby in 2011. The complainant was having fibroid uterus. The complainant was having severe abdominal pain with dysmennrrhoea for past many months. Therefore, the complainant was got admitted for removal of her uterus at Shanti Ved Hospital of OPs on 24.09.2021, where surgery (hysterectomy) was performed. The OP1 & OP2 gave intra operative findings on 24.09.2021. She was discharged on 28.09.2021, a referral letter was given by them under their signatures, wherein it was disclosed that post-operative drainage was in abnormal amount and resembled in consistence with the urine,  for this the OP’s perform CT scan and found that there is ureteric leakage. The complainant was also provided report of uterus by Histopathology Department of the hospital. 

2.2. However, the complainant was to be brought to Sir Ganga Ram Hospital, where she was hospitalized for further treatment from 19.09.2021 to 02.10.2021,  where she got PNC (stenting) for management of her condition.

2.3 The complainant also obtained opinion from Dr. Ram Manohar Lohia Hospital, she was advised for PNC change and definite surgery after three months and preferably after six months. The complainant has paid Rs. 7,230/- for medical tests and Rs.1,19,806/- as hospital bill on 02.10.2021 at Sir Ganga Ram Hospital. [The paragraph 19 & 20 of complaint mentions detail of amount spent on medication, consultation, dressing, etc.]. The complainant spent was Rs. 40,000/- approximately for PNC change and further sum of Rs. 4 lakhs is to be incurred by the complainant for definite surgery. Further, she is unable to look after her husband and young daughter of 10 year, she has to employ a maid for household chores for Rs. 15,000/- pm, which may go upto next nine months till the definitive surgery is performed and she recovers from the same. 

2.4  This all happened because of gross negligence by causing damage to uretric injury to the complainant during the operation of removal of uterus by them, the OPs failed to provide further care and treatment which were required after their negligence. The complainant was to spent a lot of amount on medicines, hospital bills, dressing bill, consultation charges, etc. That is why the complaint for amount of Rs. 10,96,867/- in respect of amount spent  and to be spent for various heads ( it is detailed in paragraph 23 of the complaint) and compensation of Rs. 5 lakhs besides other relief. In fact, the complainant had  approached  and OPs and she got admitted in the Hospital of OPs, since her mother in law and sister in law got uterus removed in that Hospital.  

2.5 The complaint is accompanied with copies of – intra operative finding dated 24.09.2021, UT urography reports, referral letter dated 28.09.2021, histopathology, patient bill, pharmacy bills, discharge summary dated 02.10.2021 issued by Sir Ganga Ram Hospital and bills issued by Sir Ganga Ram Hospital.  

 

3.1 (Case of OPs)- The OP1 and the OP2 filed their separate written statement, however, the version is common, therefore, instead of giving separate detail, the same are mentioned collectively.The OPs do not deny some of the facts mentioned in sub-paragraphs no. 2.1 & 2.2 above. 

However, they deny the other allegations and also deny claim detailed in other sub-paragraphs 2.3 & 2.4 above. The complaint does not disclose any prima facie negligence on the part of OPs but the complaint has been filed to harass them. The complainant failed to disclose that she was admitted in Gynecology Department of Sir Ganga Ram Hospital on 07.07.2020, she was discharged on 11.07.2020, it was opinedthat severe endometrioses is found then hysterectomy with bilateral salpingectomy will be done. Moreover, other findings given were about the risks associated with the procedure (i.e. injury to bowel, bladder, hemorrhage, sepsis and need for blood transfusion, which were also explained to the complainant). The complainant has also consulted many gynecologist including Professor Mala Srivastav, which she has not disclosed in the complaint. The condition of complainant was bad/deteriorating before her coming to the Hospital of OPs;   she consulted the OPs that she wanted to try with medical treatment for one month but due to severe agony of pain and vaginal bleeding she came on 24.09.2021 and wanted her hysterectomy to be done. She alongwith her husband was explained of bad condition of her uterus due to very long standing disease and previous LSCS operation (lower segment cesarean section). She was informed that due to operation, there are chances of injury to gut urinary bladder and underlying ureter, per operative bleeding, for which the complainant and her husband gave written consent; however it was not mentioned in the complaint deliberately by the complainant. 

3.2The OPs deny of negligence on the part of the operating doctors. They narrate in sequence that the complainant consulted them on 06.09.2021 with a history of severe pain during menses and increase blood loss during menses (menorrhagia),  secondary sterility and her uterus size had increased from 10-12 weeks to 16 weeks ( which find mentioned in her  previous discharge summary issued by Sir Ganga Ram Hospital besides Intra-operative findings by operating doctors). The Intra Operative Finding also shows the condition of complainant-patient before the surgery and also how carefully she was examined by the operating doctors; her uterus was hard and immobile, vagina was narrowed down and allowed only one finger to pass during p/v examination. The complainant had informed the operating doctors that she had LSCS operation, which was got infected and her stitches were gaped on second day of operation, so it was re-sutured (it is also mentioned in her previous discharge summary of Sir Ganga Ram Hospital annexed).  The complainant-patient is of O-negative blood group,being a rare group, it was also got arranged at the Hospital. The hemoglobin was 8.6 at the time, she was admitted.The written consent form was given by the complainant for two surgeons.

 Then the complainant- patient was operated upon and adherent uterus, surrounding structures and pelvic walls was removed with difficulty and drain was place. But post operatively, it was noticed that the drainage was in abnormal amounts and resembled consistency with urine. Then CT scan of abdomen was done and it was found that there was ureteric leakage. Since it was an inherent complication,  for this she was referred to higher center for further management with normal vital parameters. It shows that operating doctors conducted the surgery with utmost care and caution and there were two doctors conducting the surgery, which also suggests the fact as to how careful the doctors were.  The allegations that both the doctors were negligent at one point of time would be without any rhyme or reason. Moreover, the putting of the drain tube and noticing the complication are the facts, which show that the operating doctors were not at all negligent rather there was more than the requisite duty of care discharged by the operating doctors. Further the CT Urography was conducted at the earliest and the complication would have been tackled in a staged manner but complainant's husband showed his untoward attitude towards the doctor and wanted to go to some other center. Therefore to suggest that the complication was due to negligence is preposterous as the said risk had already been informed to the patient not just by the operating doctors but also earlier by Sir Ganga Ram Hospital. This is suppressed by the complainant. Further due care was provided after the complication was noticed and the same would have been tackled in a staged manner but for the husband of the complainant. The OPs also deny that the doctors failed to provide further care and treatment,  but in fact it was because of the doctors being conscious in their duty that such complication was brought to the notice at the earliest and was sent for a CT Urography. The complainant failed to show any negligence on the part of any of the doctors, the operating doctors cannot be held liable for any amountincurred by the complainant or otherwise. The complainant failed to show any negligence on the part of the operating doctorsexcept bald allegations without any substance therein. The OPs refers the following cases in the written statements in support of their stand -

(i) Dr. Harish Kumar Khurana vs  Joginder Singh & Ors in Civil Appeal No. 7380 of 2009 dod07.09.2021 (SC) (para 14)  held in a medical negligence case  (para 11)"in unfortunate cases though death may occur and if it is alleged to be due to medical negligence and a claim in that regard is made, it is necessary that sufficient material or medical evidence should be available before the adjudicating authority". Further "it is clear that in every case where the treatment is not successful or the patient dies during surgery, it cannot be automatically assumed that the medical professional was negligent"  (para 14). 

 

(ii) Dr. Ganesh Nayak v VShamanna&Ors in WP No. 21688 of 2009 (GM-RES) dod 14.01. 2022,  held that medical negligence cases were recklessly launched and the doctors should be protected against bona-fide errors stated in Para 3(c) that "it doesn't need research to show that more often than not, the cases of medicalnegligence are launched recklessly by the patients and their relatives".  Further "the compensation culture which obtains in other jurisdictions is gradually gaining entry to the field of medical services in our society affecting a healthy relationship of doctor & patient... Courts have been nowadays observing that an unscrupulous section of the people is prone to use the slightest opportunity to sue the doctors and hospital, in the hope of making a fast buck". 

 

3.3.Infact the complainant has failed to adduce any medical expert's opinion which would certify that the case was a case of negligence by the operating doctors and the rationale of not adducing any expert opinion could be the knowledge of the complainant that the operating doctors were performing the operation as per themedical practice and scientifically which can be determined also by record issued by Sir Ganga Ram Hospital. The complaint is liable to be dismissed. 

3.4  The written statements are accompanied with copies of - discharges summary dated 11.07.2020  issued by Sir Ganga Ram Hospital, consultancy paper issued by Dr./Professor Mala Srivastav, other reports issued by Sir Ganga Ram Hospital, consent form (in Hindi) dated 24.09.2021, referral letter,  prescriptions  and letters issued by Shanti Dev Hospital.

 

4.1 (Evidence)-The complainant led her evidence by filing detailed affidavit; this affidavit is on the lines of complaint with the support of documents filed with the complaint. 

4.2. The OP1 and OP2 also led their respective evidence by filing affidavits, the same are on the pattern of written statements and documents filed.

 

5. (Final hearing)-The parties were given opportunities to file written arguments and make oral submissions. Accordingly, the OPs filed their written arguments followed by oral submission by Sh.Meghan, Advocate. Ld. counsel for OPs also filed the recommendation of Ethical Committee of Uttar Pradesh Medical Council, which was after inquiry on the complaint (of professional negligence by this complainant), they were found non-negligent as per standard protocols.

 

6.1 (Findings)- The case and contentions of both the sides are considered, keeping in view the  material on record, which also comprises evidence, documentary record, statutory provisions of law  & case law. Since the plea of complainant is of medical negligence etc. against treating doctors/OP1 & OP2 but OPs' case is of no medical negligence etc. on their parts.

 

6.2 Since the dispute is of medical negligence, want of careor/ of deficiency of services, therefore, in order to determine, whether or not there is medical negligence or want of care or deficiency of services etc. it is appropriate at this stage to first refer  precedent on the point of medical negligence, test, guidelines and scale to be applied to determine it, ethics involved and so on. It is laid down in precedent 'Vinod Jain Vs Santokba Durlabhji Memorial Hospital AIR 2019 SC 1143 [paras, 8,  9 and 12; in which the previous precedent Kusum Sharma & others Vs Batra Hospital & Medical Research Centre & ors AIR 2010 SC 1050 is also referred with its relevant paragraphs are Para 22 & 89] - 

[Para 8]  "22. Negligence  -Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such à person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient"

 

[para 9]. A fundamental aspect, which has to be kept in mind is that a doctor cannot be said to be negligent if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view (Bolam v. Friem Hospital Management Committee -1957 1WLR 582). In the same opinion, it was emphasised that the test of negligence cannot be the test of the man on the top of a Clapham omnibus. In cases of medical negligence, where a special skill or competence is attributed to a doctor, a doctor need not possess the highest expert skill, at the risk of being found negligent, and it would suffice if he exercises the ordinary skill of an ordinary competent man exercising that particular art.

A situation, thus, cannot be countenanced, which would be a dis-service to the community at large, by making doctors think more of their own safety than of the good of their patients.

[12].  In para 89 of the judgment in Kusum Sharma &Ors. the test had been laid down as under:

"89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:

 

I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.

 

II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

 

III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.

 

IV. A medical practitioner would be liable only where his conduct fell below that of the standard so far reasonably competent practitioner in his field.

 

V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

 

VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

 

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one avail-able, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

 

VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.

 

IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.

 

X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/ hospitals particularly private hospitals or clinics for extracting uncalled for compensation. The malicious proceedings deserve to be discarded against the medical practitioners.

 

XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professional.

 

7.1  First of all (i)  a duty of care in deciding whether to undertake the case and (ii) a duty of care in deciding what treatment is to be given are to be discussed together, since they involve common discussion and material. The following conclusions are culled out from the record:- 

(i)The complainant had approached and visited the OPs/Hospital on 24.09.2021 and there is medical history, mentioned in the discharge summary dated 11.07.2020, when complainant was hospitalized from 07.07.2020 to 11.07.2020 in Sir Ganga 

Ram Hospital, the same is not disputed. This discharges summary has been proved by the OPs. 

 

(ii) The complainant was diagnosed previous LSCS with severe dysmenorrhea with AUB with MRI documented posterior wall adenomyosis with right hydrosalpinx. It is also not disputed. 

 

(iii) The complainant has proved discharge summary dated 02.10.2021 issued by Sir Ganga Ram Hospital after her hospitalization there from 29.09.2021 to 02.10.2021, she was diagnosed FUC of abdominal hysterectomy segmental transaction of the LT ureter-LT PCN in SITU. In pre-admission investigation, CT urography was also mentioned that there is  site of spillage-approx. x 5 cm from VUJ suggestive of ureteric injury.

 

(iv) The complainant has also proved intra-operative findings while observing that gut was completely adherent to posterior uterine wall and left corner of the uterus could not be visualized as completely adherent with gut loops and surgeon was called and careful mobilization of gut was done. Further, the complainant also proved referral letter dated 28.09.2021 on the basis of which she was further treated and managed in Sir Ganga Ram Hospital. 

 

(v) What appearing from the circumstances, compiled in sub-paragraph (i) to (iv) above, that it was a case of diagnosis of removal of uterus, which was also diagnosed during complainant’s admission in Sir Ganga Ram Hospital, when appropriate clinical examinations were carried and the complainant was also explained the risks involved that too in July 2020 because of her medical history and conditions. Therefore, the OPs have diagnosed the ailment properly and they had undertaken the case of complainant for treatment of removal of uterus. There is no breach of duty of undertaking the case diagnosed as removal of uterus of the complainant.

 

(vi) What risks were known in July 2020 were persisting on 24.09.2021, when the complainant approached the OPs, she was advised the treatment asked for and for the purposes of risks/injury, the complainant and her husband given the consent, which is in Hindi language (being Annexure-R3/page no. 28 of the paper book of the OP). The OPs had clearly explained the risks involved despite all best efforts while conducting the surgery, which are replica of the diagnosis and risks mentioned in discharge summary of 11..07.2020  issued by Sir Ganga Ram Hospital. 

 

(vii) The OPs not only admits that it was a difficult surgery but they did their best to the situation, the procedure they followed (already detailed in paragraph 3.2. above). The circumstances brought on record suggests that while doing surgery for ailment of removal of uterus, the consequences/risk of either of ureteric injury or  injury to intestine were appearing to inevitable because of the medical condition and history of the complainant. It has happened too. 

 

(viii) There is no contrary evidence on behalf of complainant to disprove the facts that such injury was not inevitable or it was attributable to the OPs. 

 

(ix) The manner in which procedure was followed shows that protocols of making all arrangement including blood etc was also taken care by the OPs. 

 

(x) By reading sub-clauses (v) to (ix) above together, there is no proof by the complainant that the OPs failed in their duty to undertake the treatment and perform the surgery. 

 

 

7.2.So far, last issue (iii) ofa duty of care in administration of that treatment is concerned, there is also record of post-surgery, the following conclusions are drawn - 

(a) By taking into account the material mentioned in the infra-operative finding and  referral letter  issued by the OPs as well as the contents of discharge summary issued by Sir Ganga Ram Hospital after referral letter of OPs that there was suggestive of ureteric injury to the complainant, however, by reading the procedure followed (as detailed in paragraph 3.2 above coupled with the infra-operative finding and referral letter), it is not opined anywhere in the discharge summary of Sir Ganga Ram Hospital that ureteric injury was because of negligence on the part of OPs.   

 

(b) The OPs issued the referral letter immediately for appropriate management of the complainant, which was managed by Sir Ganga Ram Hospital. It establishes that the OPs have taken care of the complainant-patient not only during the phase of surgery but also in its sequence to refer it to other center, because of the circumstances emerged including getting discharged by the complainant. 

 

(c) There is no counter evidence on behalf of complainant that OPs had discharged the patient of their own or they were not able to take post surgery care.  

 

(d).The sub-clauses (a) to (c) above, do not suggest or infer that OPs failed to take care during surgery or post surgery or otherwise in the treatment till the complainant-patient remained under their care.

 

7.3. So, in view of the conclusions in sub-paragraphs 7.1 & 7.2 above, it do not make out case of medical negligence or deficiency of services or short-comings in the services or unfair trade practice. The complaint fails. The complaint is dismissed. There is no order as to cost. 

8.  Announced on this 4th day of September 2024 [भाद्र 13, साका 1946].Copy of this Order be sent/provided forthwith to the parties free of cost as per rules, besides to upload on the website of this Commission.

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