DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

Ankush Jolly s/o Sh. M.M. Jolly, R/o #2009, Sec.21-C, Chandigarh.

                                                        ---Complainant

V E R S U S

[1]     Dr. Baljeet Kaur c/o Dr. Shamer Singh Memorial Radio Diagnostic Centre, SCF No. 13-14, Sector 16-D, Chandigarh.

[2]     Dr. Hemant S. Hardikar r/o H.No. 2153, Sector 15-C, Chandigarh.

        2^nd Address:

==========

C/o Inscol Healthcare Limited, Sector 34-A, Chandigarh.

[3]     New India Assurance Company Limited, SCO No. 36-37, Ground Floor, Sector 17-A, Chandigarh, through its Branch Manager.

---Opposite Parties

BEFORE:       MRS.MADHU MUTNEJA                 PRESIDING MEMBER

                        SH.JASWINDER SINGH SIDHU      MEMBER

Argued By:       Sh. Amaninder Preet, Adv. for the Complainant.

Sh. Somesh Gupta, Adv. for OP No.1.

Sh. Shailendra Jain, Adv. for OP No.2.

OP No.3 ex-parte.

PER MADHU MUTNEJA, PRESIDING MEMBER

1.              A Complaint regarding allegations for conducting a surgery, which could have been avoided.

                Factually speaking, the Complainant, a young boy of 18 years, developed pain in his abdomen, starting from the left hypochondruim and radiating towards the back. The Complainant was, immediately, rushed to Sector 16 Hospital, by his parents and was given immediate treatment by Dr. Sarwal. Thereafter, on the recommendations of Dr. Sarwal, the Complainant got a CT Scan done from Radio Diagnostic Center of OP No.1. After examining the report, Dr. Sarwal suggested the name of OP No.2 for Consultation. OP No.2 examined the Complainant and admitted him in the INSCOL Hospital, Sector 34, Chandigarh, on 6.8.2008. 

                Once the Complainant was admitted, certain tests were conducted, after which the Complainant was operated upon by OP No.2. The Complainant has alleged that the calculus was not removed from his abdomen. Thereafter, a repeat x-ray was conducted and the Complainant was again operated by OP No.2. This time, the calculus/ stone measuring 7-8 mm size was removed from the abdomen of the Complainant. The Complainant has alleged that a stone of this size could be removed, without operation just by medication. When he stated this fact to OP No.2, he did not get any satisfactory reply. The Complainant, thus, served a legal notice upon OP No.2 to clarify the matter.

                The Complainant also consulted various doctors and found that both the OPs No.1 & 2 were negligent and dishonest in performance of their duties. OP No.1 had provided a wrong CT Report and due to the wrong report, OP No.2 had operated on the Complainant, causing him monetary loss, as well as physical torture. Alleging that these acts of the OPs amounted to deficiency in service, the Complainant has filed the present complaint, with a prayer with the OPs be directed to pay a sum of Rs.5,00,000/- as damages, along with interest and cost of litigation.

                Complainant has attached the CT Scan report, as well as complete discharge record and medical examinations conducted on him by the OPs, as well as the legal notice issued to OP No.2.

2.              At the time of admission of the complaint and before notices were sent to the OPs, it was felt that as the matter is of alleged medical negligence, hence, relying on the decision of Hon’ble Supreme Court of India in case Martin F.D.’Souza Vs. Mohd. Ishfaq, Civil Appeal No.3541 of 2002, dated 17.2.2009, vide order dated 24.07.2009, the case was sent to the Director/Principal, Govt. Medical College and Hospital, Sector 32, Chandigarh, with a request to constitute a Committee of Experts of the relevant specialization, to opine as to whether any case of medical negligence is made out or not.

3.              The Govt. Medical College & Hospital, Sector 32, Chandigarh, has given report dated 24.9.2008, which is as under:-

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­“GOVERNMENT MEDICAL COLLEGE & HOSPITAL, CHANDIGARH

REPORT OF THE MEDICAL BOARD

With reference to order endst. No. GMCH-HA1-EA2(74)-09/13106-10, dated 13.8.2009, regarding opinion in case of Ankush Jolly Vs. Dr. Baljeet Kaur, the constituted medical board consisting of the undersigned members met on 19.8.09. In the meeting it was decided to ask for following radiological investigations:-

1.        Plain x-ray abdomen

2.        Intravenous urography                     As mentioned in discharge summary

3.        CT scan (only written report is available)    

After getting the desired documents vide no.OS-HA(I)/2503, dated 17.9.09, the constituted board again met on 24.9.2009 at 3:30 PM in the office of HOD Surgery. Only 02 CT scan films were provided to the Radiologists and according to them there is no significant discrepancy in the size of the stone. The stone is located in the upper ureter at L2-L3 level. For stone of this size and location, the procedure adopted by the concerned Urologist is appropriate.

4.              In furtherance to the above report, a subsequent report dated 14.1.2010, was also sent by the Govt. Medical College & Hospital, Sector 32, Chandigarh. This report reads as under:-

“GOVERNMENT MEDICAL COLLEGE & HOSPITAL, CHANDIGARH

REPORT OF THE MEDICAL BOARD

In continuation to our previous report dated 24.9.09 and reference to no. 3072 dated 17.12.2009, regarding opinion in case of Ankush Jolly Vs. Dr. Baljeet Kaur, the constituted medical board consisting of the undersigned members again met on 14.1.2010 at 3:30 PM in the office of HOD Surgery. The board is of the opinion that there is no evidence of any negligence on the part of Urologists as well as Radiologists as the treatment provided to the patient is appropriate. Hence, there is no negligence made out from the provided record.

5.              Even though the report from the GMCH, given above, was clearly in favour of the OPs, yet in the interest of justice, notice was given to the OPs.

                OPs No.1 and 2 filed reply. However, despite service, nobody has appeared on behalf of OP No.3, therefore, OP No.3 was proceeded against ex-parte on 20.09.2011.

6.              OP No.1 in reply has taken the preliminary objection that the CT Scan report besides measuring the size of the stone, also states that the stone was causing obstruction to the passage of urine resulting in back pressure changes in the left kidney. This could happen only if the size of the stone was big. This fact was re-confirmed on the x-ray study IVP performed on the advice of OP No.2. The Complainant has deliberately not attached the IVP films or report which would weaken his case, as they confirm the findings of the CT Scan.

                OP No.1 has stated that their role was limited to performing and reporting the CT scan and not in treating the patient. The CT scan was performed on an equipment, manufactured by a reputed company, and the report was prepared by a qualified and experienced Radiologist. They also stated that the Complainant has not yet produced any medical evidence, supporting his contentions of alleged negligence. It is settled law that where doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. OP No.1 has further stated that even the Committee of Experts, appointed by the Forum, have evaluated each and every aspect of the matter and have given an opinion that there is no evidence of any negligence by the OP No.1. It is also settled law that burden of proving negligence is on the Complainant and in the absence of substantial evidence, the OP No.1 cannot be held guilty or liable for compensation. 

                On merits, OP No.1 has admitted that they have done the CT scan of the Complainant and given their report. Reiterating what they have already stated in the preliminary objections and denying all the allegations of the Complainant, OP No.1 has prayed for dismissal of the complaint.  

7.              OP No.2 in reply has taken preliminary objection that the case of the Complainant is meritless, baseless, frivolous and no cause of action has been shown to be made out. Further, the case for the alleged medical negligence was sent by this Forum to the Director Principal, Govt. Medical College & Hospital, Sector 32, Chandigarh, to constitute a Committee to opine whether a case of medical negligence was made out. The Committee has already opined that the procedure adopted by the Urologist was appropriate and there was no evidence of negligence either on the part of the Urologist or the Radiologist and the treatment provided to the patient was appropriate. The Complainant has yet not forwarded any cogent evidence in support of his claim. In fact, the complaint is nothing, but a pressure tactic just to extract undue benefit from the OPs.

                On merits, OP No.2 has denied all the allegations made by the Complainant. The Complainant had approached him  with acute pain in the left side of his abdomen, for which he was admitted to INSCOL Hospital, Sector 34, Chandigarh. The Complainant was carrying a CT scan report, which showed a stone in the left ureter. The report was made by an experienced and competent Radiologist and the observations made therein were not doubted. Hence, a decision was made to operate the Complainant, after discussing the pros and cons of lithotripsy versus operative management. IVP and serum creatinine tests were also conducted prior to the discussion. A compromised renal function was noticed and it was found that the Complainant had no excretion on the left side for two hours. Thereafter, an operation of left ureteroscopy and “push back” [PCNL] was carried out. The stone could not be located in the left kidney, even after nephroscopy, as well as fluoroscopy by examination of the ureter and kidney. This was conveyed correctly and fairly to the Complainant and his guardian. They were also told that further investigations were needed. The Complainant was, hence, advised for x-ray KVB, which he agreed, along with ultrasound to find out the location of the stone.

                OP No.2 has submitted that in the fresh ultrasound and x-ray, the stone was found to be localised in the upper ureter and it was adjudged to be of the same size as was seen in the IVP findings. After the investigations, intervention or no- intervention were discussed with the Complainant and his guardian thoroughly. The risk and consequences of the same were also explained to them. Thereafter, the Complainant agreed for removal of the stone, as the Catheter was already in place and minimal risk was involved in the procedure. OP No.2 has further stated that without the said procedure, there were less chances of spontaneous passage and likelihood of another intervention, in case the conservative treatment of lithotripsy or medication failed.  Thereafter, the “Re-look PCNL” was done and the stone was cleared. The original consent forms duly signed by the Complainant have been annexed with the reply. No surgical charges were taken from the Complainant for the repeat intervention.

                OP No.2 has denied that the stone measuring 8 mm is likely to pass spontaneously i.e. without any operation or through medication. They have placed on record excerpts from “Campbell’s Text Book on Urology” as Annex.R-2/4, in support of their contentions. OP No.2 has further stated that in the compromised renal function of the kidney, it was not advisable to proceed with medical treatment alone and the procedure carried out on the Complainant was correct and appropriate. OP No.2 has further stated that the Complainant has not produced on record any reports of the various doctors, whom he had consulted, to show negligence and dishonest performance of duty by the OP No.2. Relying on the above contentions, OP No.2 has also prayed for dismissal of the complaint with costs.   

8.              Parties led evidence in support of their contentions.

9.              We have heard the learned counsel for the OPs and have perused the record.

10.            The Complainant had approached the OPs, for medical treatment, as he was suffering from acute abdomen pain. The relevant portion of the CT Scan, performed by OP No.1, in this regard, is as under:-

“LEFT URETER is normal in course, caliber and outline. Radio opaque shadow suggestive of calculus is seen in the course of left ureter at lower border of L2. It measures 18.8 mm and show density of 628 H.U. suggestive of calculus. Lower part of right ureter is normal.”

“IMPRESSION:-

Left ureteric calculus at lower border of L2 with resultant hydronephrosis left kidney.

Please correlate clinically.”

                Thereafter, when the Complainant visited OP No.2, he was examined and recommended for surgery. The Complainant has alleged that the surgery performed by OP No.2 was not required.

                The complaint basically revolves around the allegation that the OP No.2 has performed un-required surgery, relying on the report of OP No.1.

11.            Before going into the discharge summary and the procedure followed by OP No.2, the literature placed on record by the OP No.2 from “Campbell’s Text Book” needs to be examined. As per the material provided:-

“…………the authors’ experience is that less than 10% of patients need hospitalization. Bypassing obstruction or extraction of a stone is necessary when there is evidence of significant obstruction, progressive renal deterioration, refractory pyelonephritis, or unremitting pain. An obstructed and infected kidney should be drained expeditiously or as soon as the patient is stable.”

“……….Hospitalization for renal stones is mandatory under three clinical circumstances; in patients with symptoms not controlled with oral medications; in the presence of calculus anuria, seen usually in patients with a solitary kidney; or in patients with an obstructing stone and an infected urine or fever. Finally, patients with obstructing ureteric stones greater than 6 mm are seldom likely to pass their stone spontaneously, and early admission of procedural therapy may be prudent………..”

“The majority of calculi less than 4 to 5 mm in size pass spontaneously……….”

The stone of the patient, as per OP No.1, was 18.8 mm and as per the OP No.2 was 8 mm. In both the situations, as per the literature, provided above, the stone could not pass out spontaneously, and a procedure was required, which was performed by OP No.2.

12.            As per the discharge summary, the calculus in the left ureter was pushed in the renal pelvis, left PCNL was done, and the stone was fragmented. Thereafter, a DJ Stent was placed  antegrade. The procedure was uneventful and the patient was discharged. IVP [Kidney Anatomy X-ray] and Serum Creatinine tests were also conducted, prior to the procedure. This procedure was carried out because, it was found during IVP that the Complainant had no excretion on the left side for two hours. Prior x-ray KVB [Kidney Ureter Bladder] was also performed on the patient to know the exact location of the stone. All procedures performed were discussed with the Complainant and he had himself agreed to the removal of the stone, as the Catheter for anaesthesia and surgery were already in place and minimal risk was involved in the procedure. The “Re-look PCNL” showed that the stone had cleared. OP No.2 has contended that it was not possible that  a stone measuring 8 mm could pass out spontaneously without operation or through medicines. Also, in view of the pre-operative IVP findings, showing compromised renal function of the kidney, and raised serum creatinine, it was not advisable to proceed with the patient on medical treatment alone.

13.            From the case summary, it is evident that the patient had brought a CT Scan report at the initial stage, but OP No.2 had conducted their own tests, to come to the final conclusion, before the decision to operate was taken. Otherwise also, the CT Scan report was made by an experienced and competent Radiologist. CT Scan is a sensitive and specific test, which need not be repeated, as it is very expensive and exposes the patient to unnecessary radiation [Annex.R-2/5].   

14.            At the time of arguments, the doctor also pointed out that the renal function test for Serum Creatinine was conducted and the result showed 1.8; whereas, the normal range was 0.5 – 1.4 mg/dl. This raised reading made a pointer to mal-functioning of renal function, which, if ignored, could lead to progressive irreversible damage to the kidney.

15.            OP No.1 has made the CT Scan report, which showed the presence of a stone in the left kidney. The stone was causing obstruction to the urine resulting in back pressure changes in the left kidney. This could happen only if the size of the stone was big. The opinion of OP No.1, placed on record by the Complainant, and already given above, is suggestive/ gives impression of the presence of a ureteric calculus, which required treatment by an Urologist. The CT Scan, as pleaded by the OP No.1, was performed on an equipment, manufactured by a reputed company, and the report was prepared by a qualified and experienced Radiologist. It was upto the Complainant to have accepted or rejected the suggestion.

16.            At this stage, the allegations by the Complainant that the reports of OP No.1 were incorrect and hence, the procedure performed by OP No.2 was uncalled for, seem too far fetched, especially, in the light of the medical opinion given by the Committee of Experts of the Govt. Medical College & Hospital, Sector 32, Chandigarh, referred to above.

17.            The Complainant, at that time, was suffering from acute pain, his renal function was compromised, the doctors had done their best for him, in the situation, and brought him out of his misery. After the complete procedure was over, with no negative site effects, he probably had a re-thinking about the need for the procedure conducted. Unfortunately, he has not attached any literature on record or medical opinions by other experts, to establish or substantiate his contentions to show that the procedure conducted by the OPs was in any way wrong or malafide.

18.            In the case of Tara Chand Jain Vs. Sir Ganga Ram Hospital, reported as (2005) 13 SCC 648, the Hon’ble Apex Court has held that when pivotal documents do not substantiate the case, the allegations of negligence are not established. The appeal had been, therefore, dismissed.   

19.            In the case of C.P. Shree Kumar (Dr.), MS (Ortho) Vs. S.Ramaujam, reported as (2009) 7 SCC 130, it was held by the Hon’ble Apex Court that:-

“…..As already observed in Jacob Mathew case the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence.  A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved.  It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.”

“…………too much suspicion on doctors and interference by courts is a dangerous proposition and it would prevent doctors from taking decision, which could result in complications. In this situation only the patient will be the ultimate suffer.”  

20.            In the case of Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee, reported as (2009) 9 SCC 221, the Hon’ble Apex Court held as under:-

“(iii)       Adoption of one of the modes of treatment, if there are many, and treating the patient with due care and caution would not constitute any negligence.

(iv)        Failure to act in accordance with the standard, reasonable, competent medical means at the time would not constitute a negligence. However, a medical practitioner must exercise the reasonable degree of care and skill and knowledge which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given would be negligence.

(v)         In a complicated case, the court would be slow in contributing negligence on the part of the doctor, if he is performing his duties to the best of his ability.”

21.            In the case of Jacob Mathew Vs. State of Punjab, reported as (2005) 6 SCC 1, the Hon’ble Apex Court held as under:-

“……..So also an error of judgment on the part of a professional is not negligence per se.”

“A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act. Obviously, therefore, it will be for the Complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient.”

“…..The most faovurable view of the conduct of an accused medical an has to be taken, for it would be most fatal to the efficiency of the medical profession if no one could administer medicine without a halter round his neck. (AIR p.75e).”

22.            The law on the point stated above, as well as the principles of natural justice, emphasizes that a medical practitioner, who has acted reasonably and with care to get his patient out of his misery, should not be burdened with allegations of medical negligence by simply stating that the treatment provided by him was un-required. At the time of acute pain the Complainant has put his complete trust in the doctor and once relieved of his pain, he is raising all questions to establish some wrong by doctors.  But, he has not placed on record any evidence to substantiate his case. Lord Clyde stated in Hunter V. Hanley, 1955 SLT 213, as under:-

“In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men…… 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…..”

“……..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.”

                There are no allegations about the competence of the doctors or any shortcoming in the procedure performed by them. The literature placed on record shows that the size of the stone beyond 5 mm could only be taken out surgically. After the report of the OP No.1, the Urologist has conducted further tests and even tried to remove the stone by PCNL. The stone has finally been removed through the Catheter, which was already in position. In such a situation of careful analysis and professional competence, should a doctor and his reputation be made to suffer on bald allegations? Definitely not, especially when the Committee of Experts constituted by the GMCH has also opined that the procedure adopted by the Urologist was appropriate and there was no negligence either by the Urologist or the Radiologist.

23.            Not finding any justification in the allegations of the Complainant, we dismiss this complaint, with no orders as to costs.

24.            Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

12^th December, 2011.                                                                          

Sd/-

 (MADHU MUTNEJA)

PRESIDING MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER