Order by:
Sh.Amrinder Singh Sidhu, President.
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 ((now section 35 of Consumer Protection Act, 2019) on the allegations that on 22.11.2018 the visited the Opposite Parties No.1 and 2 hospital for treatment of his kidney cyst and Opposite Parties No.1 and 2 advised some medical tests which were conducted on same day from Diksha Diagnostic lab and from Rishi X-ray and Scan Centre and observing the said tests, Opposite Parties No.1 and 2 suggested to remove the cyst by way of surgery. On 24.11.2018, the complainant got admitted in the hospital of Opposite Parties No.1 and 2 where the surgery was conducted by Opposite Party No.1 doctor alongwith his fellow doctors under the observation of Opposite Party No.1 doctor and after conducting the surgery, the Opposite Party No.1 assured the complainant that the surgery was successful and he will recover within 2 weeks. On post surgery on 28.11.2018 when the complainant was under the observation of Opposite Parties No.1 and 2 hospital, the complainant suffered urinary retention and the Opposite Parties No.1 and 2 took him to Deepak Hospital, Ludhiana where the bladder of complainant got cleared and instead of waiting for the follow up after treatment in Ludhiana, he was taken back to Opposite Parties hospital at Moga and charged Rs.15,000/-. After reaching Opposite Party hospital, again on 29.11.2018 the complainant suffered with same problem and blood clots in his urine and then Opposite Party referred the complainant to Dayanand Medical College & Hospital, Ludhiana and all this happened due to deficient services and negligence in surgery of the complainant on the part of the Opposite Party and for this, the Opposite Parties charged Rs.30,000/- for surgery of complainant. In Dayanand Medical College & Hospital, Ludhiana the complainant remained admitted for approx.15 days for his treatment post surgery and had to pay Rs.75,722/- more due to the negligence and deficient services of Opposite Parties while treating the complainant. Even after 4 months of surgery, the complainant has not recovered completely due to the negligence and deficient services of the Opposite Parties No.1 and 2. Vide instant complaint, the complainant has sought the following reliefs.
a) To direct the Opposite Parties to refund Rs.30,000/- charged from him and also to pay Rs.15,000/- paid at Deepak Hospital Ludhiana and to pay Rs.75,722/- which the complainant had to incur in Dayanand Medical College & Hospital, Ludhiana alongwith compensation for an amount of Rs.1 lakh for causing him mental pain and agony and Rs.22,000/- as litigation expenses.
Hence, the present complaint.
2. On notice, Opposite Parties No.1 & 2 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the present complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Parties No.1 & 2. In fact, the complainant came to Opposite Party No.2 hospital with complaint of stone in his urinary system and he was investigated on 22.11.2018 and 23.11.2018 with routine test ultrasound and IVP and he was diagnosed having right upper ureteric stone (13 mm) causing hydronephrosis secondary to obstructive uropathy. Patient was explained the line of treatment in detail and he accordingly decided to get operated in Opposite Party No.2 hospital. No guarantee, warranty or any assurance was ever given to the patient. Percutaneous Nephrolithotomy (P.C.N.L) Right side was done by super Speciality Dr.Neeraj Goyal MCH Urologist alongwith Opposite Party No.1 doctor and competent medical team diligently prudently with due care and causations on 24.11.2018. Surgical procedure was smooth and uneventful. On 28.11.2018, 4th post-operative day after surgery, patient had hematuria and retention of urine. On 28.11.2018 about 7.30PM the patient raise some complaint to Opposite Party No.1 then Opposite Party No.1 examined the same and found that there is need to relieve the retention and evacuate blood clots at the earliest so Opposite Party No.1 contacted Dr.Neeraj Goyal, MCH Super Specialist who told that sent the patient at Ludhiana and he could manage the same and hence as per the advice of Dr.Neeraj Goyal, the patient was sent to Deepak Hospital in the ambulance with Sood Nursing Home OT assistant. Dr.Neeraj did the needful and patient was brought back to Opposite Party No.2 hospital the same night. On 29.11.2018 Opposite Party No.1 explained the patient party in detail that this can happen with this operative procedure (PCNL), and also explained that if it occurs again, then the patient has to shift to higher centre for further management. On 29.11.2019 evening the patient had again retention of urine and Opposite Parties advised patient party to take the patient to Dayanand Medical College & Hospital, Ludhiana for further management. Emergency care has been done very well he has been properly guided for the management of Post PCNL Hematuria. After this, the patient lost to follow up and never came back. Everything was done diligently prudently with due care and caution and there is no negligence, Unfair Trade Practice or deficiency in service on the part of Opposite Parties No.1 and 2. Moreover, as per study out of 582 patients who underwent percutaneous nephrolithotomy, 4% had complications, in which 6% had transient ureteral obstruction. The patient party was well explained about the complication may occur and in such case, the patient has to refer to higher management for safety of life and better treatment. Referring to higher management in such cases is a part and parcel of medical treatment. On merits, Opposite Parties No.1 and 2 took up the same and similar pleas as taken up by them on the preliminary objections. All other allegations made by the complainant are totally wrong and specifically denied and it is, therefore, prayed that the present complaint is not maintainable and the same deserves dismissal.
3. Opposite Party No.3 appeared separately through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint is not maintainable; that the complainant has got no locus standi to file the present complaint; that no deficiency in service has been attributed to the Opposite Party No.3 and from the allegations in the complaint no deficiency in service is made out. The complaint is bad for non joinder and misjoinder of necessary parties. Deepak Hospital, Ludhiana and Dayanand Medical College & Hospital, Ludhiana are necessary parties, so the complaint may kindly be dismissed on this score. Opposite Party No.1 is insured with Opposite Party No.3 vide policy No. 2012002718P110517601 for the period 15.11.2018 to 14.11.2019 subject to insurance policy’s terms and conditions. Moreover, the Opposite Party No.3 is liable to indemnify the Opposite Parties No.1 and 2 if they have acted with utmost care and devotion to the medical profession and has treated the patient as per rules of the medical practice, so the complainant against answering Opposite Party is not maintainable and the same deserves dismissal. On merits, Opposite Party No.3 took up almost the same and similar plea as taken up by them in the preliminary objections and hence, the complainant is liable to be dismissed.
4. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C11 and closed his evidence.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties No.1 & 2 also tendered into evidence affidavit Ex.OP1,2/1 alongwith copy of documents Ex.Ops1,2/2. Similarly, Opposite Party No.3 tendered into evidence the affidavit of Sh.R.N.Bansal Ex.OP3/1 alongwith copy of document Ex.OP3/2 and thereafter closed their respective evidence.
6. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
7. Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that on 22.11.2018 the visited the Opposite Parties No.1 and 2 hospital for treatment of his kidney cyst and Opposite Parties No.1 and 2 advised some medical tests which were conducted on same day from Diksha Diagnostic lab and from Rishi X-ray and Scan Centre and observing the said tests, Opposite Parties No.1 and 2 suggested to remove the cyst by way of surgery. On 24.11.2018, the complainant got admitted in the hospital of Opposite Parties No.1 and 2 where the surgery was conducted by Opposite Party No.1 doctor alongwith his fellow doctors under the observation of Opposite Party No.1 doctor and after conducting the surgery, the Opposite Party No.1 assured the complainant that the surgery was successful and he will recover within 2 weeks. On post surgery on 28.11.2018 when the complainant was under the observation of Opposite Parties No.1 and 2 hospital, the complainant suffered urinary retention and the Opposite Parties No.1 and 2 took him to Deepak Hospital, Ludhiana where the bladder of complainant got cleared and instead of waiting for the follow up after treatment in Ludhiana, he was taken back to Opposite Parties hospital at Moga and charged Rs.15,000/-. After reaching Opposite Party hospital, again on 29.11.2018 the complainant suffered with same problem and blood clots in his urine and then Opposite Party referred the complainant to Dayanand Medical College & Hospital, Ludhiana and all this happened due to deficient services and negligence in surgery of the complainant on the part of the Opposite Party and for this, the Opposite Parties charged Rs.30,000/- for surgery of complainant. In Dayanand Medical College & Hospital, Ludhiana the complainant remained admitted for approx.15 days for his treatment post surgery and had to pay Rs.75,722/- more due to the negligence and deficient services of Opposite Parties while treating the complainant.
8. On the other hand, ld.counsel for Opposite Parties No.1 & 2 has repelled the aforesaid contention of the ld.counsel for the complainant and submitted that the written reply filed by Opposite Parties No.1 & 2 be treated as part and parcel of written submissions of the answering Opposite Parties and prays that there is no deficiency in service on the part of the Opposite Parties. Further contended that Opposite Party No.2-Doctor is fully competent and experienced in such like operations. In fact, the complainant came to Opposite Party No.2 hospital with complaint of stone in his urinary system and he was investigated on 22.11.2018 and 23.11.2018 with routine test ultrasound and IVP and he was diagnosed having right upper ureteric stone (13 mm) causing hydronephrosis secondary to obstructive uropathy. Patient was explained the line of treatment in detail and he accordingly decided to get operated in Opposite Party No.2 hospital. No guarantee, warranty or any assurance was ever given to the patient. Percutaneous Nephrolithotomy (P.C.N.L) Right side was done by super Speciality Dr.Neeraj Goyal MCH Urologist alongwith Opposite Party No.1 doctor and competent medical team diligently prudently with due care and causations on 24.11.2018. Surgical procedure was smooth and uneventful. On 28.11.2018, 4th post-operative day after surgery, patient had hematuria and retention of urine. On 28.11.2018 about 7.30PM the patient raise some complaint to Opposite Party No.1 then Opposite Party No.1 examined the same and found that there is need to relieve the retention and evacuate blood clots at the earliest so Opposite Party No.1 contacted Dr.Neeraj Goyal, MCH Super Specialist who told that sent the patient at Ludhiana and he could manage the same and hence as per the advice of Dr.Neeraj Goyal, the patient was sent to Deepak Hospital in the ambulance with Sood Nursing Home OT assistant. Dr.Neeraj did the needful and patient was brought back to Opposite Party No.2 hospital the same night. On 29.11.2018 Opposite Party No.1 explained the patient party in detail that this can happen with this operative procedure (PCNL), and also explained that if it occurs again, then the patient has to shift to higher centre for further management. On 29.11.2019 evening the patient had again retention of urine and Opposite Parties advised patient party to take the patient to Dayanand Medical College & Hospital, Ludhiana for further management. Emergency care has been done very well he has been properly guided for the management of Post PCNL Hematuria. After this, the patient lost to follow up and never came back. Everything was done diligently prudently with due care and caution and there is no negligence, Unfair Trade Practice or deficiency in service on the part of Opposite Parties No.1 and 2. Moreover, as per study out of 582 patients who underwent percutaneous nephrolithotomy, 4% had complications, in which 6% had transient ureteral obstruction. The patient party was well explained about the complication may occur and in such case, the patient has to refer to higher management for safety of life and better treatment.
9. The main contention of the ld.counsel for Opposite Parties No.1 and 2 is that on 28.11.2018 at about 7.30PM the patient raise some complaint to Opposite Party No.1 then Opposite Party No.1 examined the same and found that there is need to relieve the retention and evacuate blood clots at the earliest so Opposite Party No.1 contacted Dr.Neeraj Goyal, MCH Super Specialist who advised Opposite Party No.2 to send the patient at Ludhiana due to rush of work with them at Ludhiana and he could manage the same and hence as per the advice of Dr.Neeraj Goyal, the patient was sent to Deepak Hospital in the ambulance of Opposite Party No.2 hospital with Sood Nursing Home OT assistant. Dr.Neeraj did the needful and patient was brought back to Opposite Party No.2 hospital the same night. On 29.11.2018 Opposite Party No.1 explained the patient party in detail that this can happen with this operative procedure (PCNL), and also explained that if it occurs again, then the patient has to shift to higher centre for further management. On 29.11.2019 evening the patient had again retention of urine and Opposite Parties advised patient party to take the patient to Dayanand Medical College & Hospital, Ludhiana for further management. Emergency care has been done very well he has been properly guided for the management of Post PCNL Hematuria. In matter of Rudresh Vs. Dr.Srinivas V. & Ors. Hon’ble National Commission, New Delhi in Revision Petition No. 2862 OF 2013 decided on 2.9.2015 has held that refer the patient to Hospital was the proper and bonafide and referring a patient to higher centre is not negligence. We have gone through several medical literature and Text book of Surgery, authored by Bailey and Love, which states that in some patients 'cellulitis' is observed, after IM injection. There was no deficiency in service or negligence as OP-1 took proper care, thereafter. We would like to rely upon various judgments from Hon'ble Supreme Court. In "Martin F. D'Souza Vs. Mohd. Ishfaq" AIR 2009 SC 2049" it was observed that, "Simply because a patient has not favorably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse". In Jacob Mathew Vs. State of Punjab & Anr., (2005) 6 SCC 1 the Hon'ble Supreme Court had concluded that, "a professional may be held liable on one of two findings : either he was not possessed of requisite skill which he professed to have possessed, or, he did not exercise with reasonable competence in given case, the skill which he did possess."
10. The question of medical negligence also came up for hearing before the Hon’ble Apex Court in Kusam Sharma & Others. Vs. Batra Hospital & Medical Research Centre 2010 AIR (SC) 1050 wherein following principles were laid down as under:-
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 standards of a 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 available, 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 unnecessary 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. Such 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 professionals.
In V.Krishan Rao appellant (s) Vs. Nikhil Super Specialty Hospital & Another Respondents(s), Civil Appeal No. 2641 of 2010 decided on 08.03.2010 by Hon’ble Apex Court it has been laid down to the following effect:-
"A Doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art"...(See page 122 placitum `B' of the report)
18. It is also held that in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and a doctor is not negligent merely because his conclusion differs from that of other professional men. It was also made clear that the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care (See page 122, placitum `A' of the report).”
11. Applying the principles of the judgements ‘supra’ to the facts of the present case, it becomes amply clear that the doctors have treated the patient in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art and as such Opposite Parties No.1 & 2 can not be guilty of the negligence. Not only that, no ingredient of negligence have either been pleaded nor any evidence was brought to prove any negligence allegedly made by Opposite Parties No.1 & 2 during the course of treatment. The complainant wants this District Consumer Commission to jump to the conclusion that Opposite Parties No.1 & 2 were guilty of the negligence simply because of the fact that desired result could not be achieved despite getting medical treatment as prescribed by Opposite Parties No.1 & 2. We have every reason to differ with the contention of the complainant in view of the latest law laid down in V.Krishna Rao authority ‘supra’ and other relevant laws laid down in remaining authorities referred above. We are of the considered view that the complainant has miserably failed to prove any negligence on the part of the Opposite Parties No.1 & 2 nor there is any evidence regarding deficiency in service on the part of Opposite Parties No.1 & 2. There is absolutely no force in the complaint and the same requires to be dismissed.
12. Hence, keeping in view the facts and circumstances of the case as well as supra judgements of Hon’ble Supreme Court of India, we find no merit in the complaint and the same stands dismissed. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
13. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the Whole Time Member in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated: 09.05.2022.
