BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHABAD.
Complaint Case no. 288 of 2015
Date of Institution: 6.11.2015
Date of decision: 16.08.2017
Sube Singh aged 52 years son of Shri Nihal Singh, caste Jat, resident of VPO Andana, Tehsil Moonak District Sangrur. ……Complainant.
Versus.
1. Dr. D.P. Soni, Medical Officer, City Max Hospital, Chandigarh Road, Tohana, District Fatehabad.
2. City Max Hospital, Chandigarh Road, Tohana, District Fatehabad through its Director.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: Sh. Raghbir Singh, President.
Sh. R.S. Panghal, Member.
Smt. Ansuya Bishnoi, Member.
Present: Sh. R.K. Meena, Advocate for the complainant.
Sh. Updip Singh, Advocate for opposite party No.1.
Sh. K.K. Goyal, Advocate for opposite party No.2.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred as ops).
2. In brief, the facts of the present complaint are that in the first week of February, 2013, the complainant all of sudden started to feel severe pain in his stomach and as such he visited to the hospital of ops and diagnosis of the complainant was conducted on 13.2.2013 and it was reported to him that he is suffering from Gall stone. It was told him that he will be operated for the same and op no.1 told to the complainant that the operation is minor and there is no seriousness in the same and he will be procured just only after 3-4 days. The complainant was operated by op no.1 on 13.2.2013 and during the operation, the op no.1 received a telephonic call from someone and while operating the complainant he started to talk on telephone and as such the op no.1 committed grave negligence and due to oversight, the op no.1 did not stitch that portion/ part of the body properly and did not give proper attention during the operation of the complainant and the leakage was left in the operation and in a very casual manner he operated the complainant. It is further averred that after operation, the complainant started to feel very severe pain in stomach and when he brought this fact to the notice of op no.1 then he told to the complainant that there is normal pain and he will be cured and will feel better within 2-3 days and as such the complainant remained under constant and conservative treatment in the hospital of op no.1 as an indoor patient and finally on 16/17.2.2013, when the pain became intolerable for the complainant, then he again told this fact to op no.1. On this, the op no.1 medically checked up the complainant and due to critical condition of complainant, the op no.1 referred him in the higher medical institution of Sector-32, Chandigarh on 18.2.2013 and as such the complainant was admitted in Govt. Medical College Hospital, Sector-32, Chandigarh on the same day i.e. 18.2.2013, where some tests of the complainant were conducted and treatment was given by the doctor and after getting some improvement, he was discharged on 23.2.2013 and was brought to his house. But again on 26.2.2013 due to severe pain, he was admitted in Rajasthan Medical Center Complex, Tohana where the complainant was treated by the doctor but on the very next day i.e. 27.2.2013, he was referred to D.M.C. Ludhiana due to deteriorating condition. It is further averred that after that he was admitted in D.M.C. Ludhiana on 27.2.2013 where he was operated and was treated as an indoor patient and he remained under constant and conservative treatment as an indoor patient for the period 27.2.2013 to 16.3.2013 and after that as per the instructions of doctor the complainant was again admitted on 4.6.2013 and was operated on 6.6.2013 and remained admitted as an indoor patient in the hospital from 4.6.2013 to 15.6.2013 and after that he visited to the aforesaid hospital weekly and fortnightly as per the advice of the doctor. After that he was again admitted on 24.7.2014 and was operated for Hernia being necessary due to operation 2-3 times in the continuous manner and after that he visited to the aforesaid hospital weekly and fortnightly as per the advice of the doctor and was treated as outdoor patient. The complainant remained admitted as an indoor patient in the hospital from 24.7.2014 to 30.7.2014 and after that he get some relief and now he is feeling much better but till today the complainant is under treatment and is unable to uplift any heavy weight and as such has become permanent disabled person and this all happened due to negligence and unfair trade practice on the part of the ops. It is further averred that prior to this, the complainant was cultivating his agricultural land measuring 5 acres and was also cultivating land measuring 7 acres on contract basis and was earning Rs.30,000/- per month and due to negligence act of the ops, the complainant has to leave his job. The family members of the complainant are totally dependent upon the earning of the complainant and as such now the complainant and his family members have no source of income and complainant even has no money for any treatment and medicines. The complainant has incurred the expenditure of more than Rs.8,00,000/- on the treatment, hospitalization, transportation and special diets and as such he is entitled to get compensation of Rs.8,00,000/- incurred by him and Rs.12,00,000/- on account of loss of earning, shorten of life, pain and suffering, mental and physical agony suffered by complainant and his family members and future loss of earning and further expenditure is to be incurred on the treatment of the complainant. That the complainant requested to the ops several times to compensate him by making the payment of Rs.20 lacs but the ops delayed the matter on one pretext or the other and now two days back they have flatly refused to do so. Hence, this complaint.
3. The pleaded case of the opposite party no.1 is that though purported complainant has concealed treatment record prior to coming to op no.2 hospital and also has not produced complete treatment record till date, but since op no.1 is no more working in op no.2 hospital and is not having any approach to the indoor record of the complainant in op no.2 hospital, nor the same has been made available to op no.1, the present record is as per copies of treatment record annexed by complainant with complaint. As per the said record, the patient came to the hospital/op no.2 on 13.8.2013 (it should be 13.2.2013) with complaint of pain in right hypochondrium region and was already a diagnosed case of cholelethiasis with cholycystitis and was already taking treatment from some other doctors but did not produce any record. Thus it is incorrect that the pain started suddenly in his stomach on 13.2.2013 as alleged. He came to the hospital for getting cholecystectomy done. The patient was admitted in op no.2 hospital on 13.2.2013 and told the history as stated above. He was properly investigated before going for further treatment by way of surgery. It is incorrect that the complainant was told that the operation was a minor one. Any surgical procedure which is to be done in the operation theatre under any type of anesthesia is always a major procedure as the risk and complications of all type of surgeries and anesthesia are almost similar. Even otherwise, the removal of any vital part of the body as gall bladder can never be a minor procedure. After taking a proper and informed consent, he was properly assessed and investigated immediately and the same day, op no.1 operated the patient in the fully equipped operation theatre under all aseptic conditions wherein during surgery, the gall bladder was found to be having very much adherent to neighboring organs and there was a lot many adhesions in the callot’s triangle. The same was edematous and was having a stone in a fix position in its neck which was already inflamed and was causing pressure on CBD. With great efforts, the gall bladder was separated from CBD and neighboring structures and was excised from its annuli. At the time of surgery, there was no bile collection in the gall bladder fossa. The surgery was a complete success and was uneventful and the same was closed by applying sutures and then aseptic dressing upon the surgical would after placing drain in gall bladder fossa to drain out bile fluid which may collect in the gall bladder fossa for a few days in post-operative period. The operative specimen was sent for histopathology. On the fourth day of surgery (i.e. 16.2.2013), bile collection was still coming out from drain, though not substantial but it soaked the operative wound as well which necessitated for ultrasound examination which showed mild to moderate fluid in the sub hepatic fossa. To find out the cause of bile leakage on the fourth day as well, though not substantial, ERCP is needed and hepatobiliary surgeon opinion was required as the facilities were not available in op no.2 hospital and the patient was needed to be referred to higher center for the safety in case of any major problem as Tohana is a small township and higher grade territory care medical facilities are not available if needed in emergency. After the surgery proper hydration with IV fluids, antibiotics and painkillers were given during the hospital stay and closed monitors of vitals done. Post operative ultrasound was also done on 16.2.2013 so as to see the Intra abdominal collection. When doubted, the patient was immediately referred to higher Centre and they preferred to go to Dr. Sunil Arya for ERCP and stenting. According to Dr. Sunil Arya selective CBD cannulation was not possible and the patient was referred back to City Max Hospital, Tohana and was also advised for repeat conciliation after 3 days. Again he came back on 17.2.2013 and on the same day bile leakage had increased and then the patient was referred for better management to the Govt. College Hospital, Sector 32, Chandigarh where during the endoscopic procedure the total cut of CBD was found for which he was treated there conservatively and was discharged on 23.2.2013 with drain in situ and was also advised for follow up in surgery OPD on Monday and Thursday after medication of one week as per record produced with the complaint. They also advised him to come in emergency whenever required. The patient never returned to op no. 1 for any treatment after that. Even he did not come to the ops to show the investigations and any record of treatment done by the hospital of Sector 32, Chandigarh. It is further submitted that subsequent record of DMC Ludhiana produced with the complaint showed that on 27.2.2013 he went to DMC with complaint of Bilary peritonitis for which he was treated over there where it was found that the bile spillage in the peritoneum was substantial. As per the whole record produced, it can be safely interpreted that the condition of the patient did not deteriorate due to any of the act of ops but was due to the disease entity and its chronic nature as despite the fact that the bile seepage in the post operative period upto 16.2.2013 was mild to moderate which is usual upto that stage and on 17.2.2013, the ERCP could not be successful and on 18.2.2013 at Chandigarh, though the bile seepage on ultrasound examination was still mild to moderate, with all parameters under normal limits, during ERCP. The CBD was found to be cut through. The patient was treated conservatively till 23.2.2013 wherein he was advised to come in follow up after one week. However, on 27.2.2013 he want in DMC with biliary peritonitis with now collection of 1400 cc despite drain in situ in gall bladder fossa, meaning thereby the bile leakage was not due to any injury to CBD during surgery, but was due to delayed manifestation of necrosis of CBD due to chronic cholecystitis and (cholelithiasis) with inflammation of neck of gall bladder due to adhesive stone in it (MIRZZI’s SYNDROME) resulting into complete cut of CBD at delayed stage after ERCP during which a retrograde endoscope is inserted into CBD to access it. Had it been CBD cut at the time of surgery, the collection in the peritoneum found during and after surgery would have been in thousands of mls, and the patient would not have survived till 27.2.2013 when he went to DMC. It is further submitted that there is no evidence worth its name to show that there was any negligence or deficiency or delay in service at the hands of op no.1 during the course of treatment of the patient. The treatment was performed in the said hospital on standard scientific lines as per condition of the patient by fully competent, qualified and well trained/ experienced doctors and para medical staff of the hospital. All other contents of the complaint are also denied. It is further submitted that it is incorrect to allege that during surgery, op no.1 received the telephonic call from someone and he started talking on phone. The surgery of the patient was done in the fully equipped operation theatre of op no.2 hospital under all aseptic conditions by fully qualified and competent doctors, OP no.1 M.S. (Surgery) being incharge of operating team. It is a matter of fact that in every operation theatre of Hospital, proper sterilization and techniques are used for every surgery and operation theatre dress are worn by the surgeons and after proper wash and all the personal belonging like phone, pen, purse, shoes etc. of the persons who are present in the operation theatre including surgeon and staff are kept outside of the OT and the same protocol was followed in the present case. The surgery in question was a major one and the complainant was under the effect of complete anesthesia then how can he came to know that op no.1 was talking on phone. The patient was properly attended and his operated wounds were properly stitched. In fact, due to the previous repeated attacks of gallstone colic, the gall bladder was found to be thick walled with adhesions and it was a difficult anatomy which varies in person to person. Certain preliminary objections regarding limitation and expert opinion have also been raised and with the above averments, dismissal of the complaint has been prayed for.
4. Opposite party no.2 filed separate reply taking certain preliminary objections that complaint is false and baseless and is based on layman conjectures. The complainant does not know the pathology of disease from which he was suffering and its progress and the line of treatment; that complaint is not maintainable as there is no opinion of any senior/ more qualified expert regarding any negligence attributable to the answering op; that complaint is barred by limitation; that complainant is estopped by his own act and conduct to file the present complaint; that complainant has concealed material facts from this Forum; that complaint is barred by non joinder and mis joinder of necessary parties and that complainant has no cause of action to file the present complaint. It is further submitted that complaint against the answering op is not maintainable as the hospital is being run by a partnership firm which has provided well qualified staff, building and operation theatre alongwith every necessary infrastructure and equipments. The main purpose of the hospital is to provide medical care to the needy patients at an affordable price by the competent faculty. The complainant in the present case was suffering from gall stone and was properly examined, investigated, diagnosed and the same was operated by Dr. D.P. Soni (M.B.B.S, M.S) a well qualified and competent doctor having sufficient experience to operate such like operations. The op never deviated from the normal prescribed line of treatment at any point of time. The treatment in question was given as per the prescribed norms of surgery which has been well described in the text book of Master of Surgery edited by Joseph E Fischer. The op used reasonable degree of skill, care and diligence in providing treatment to the complainant. However, it is well established fact that while removing the gall stone from the gall bladder bile duct injury which is known as CBD injuries may be caused even treated by a competent doctor and also even after taking all necessary precautions and measures. In the present case, the complainant was operated by doctor D.P.Soni on 13.2.2013 after taking the consent from the relatives and from the patient and stone was removed successfully, however during post operation care it was found that the complainant was suffering by CBD injury as small quantity of bile was coming through catheter, so complainant was kept continuous watch and observation during post operative care. Patient remained under post operative care for four days and improvement was observed and thereafter at the insistence/ pressure of the relatives of the patient, he was shifted to Govt. Medical College and Hospital, Sector 32 Chandigarh alongwith hospital record which the attendants of the patient not returned to the hospital till now. Same treatment was continued to the patient there and the condition of patient was improved and discharged, however complainant was treated thereafter at much smaller centre like RMC Hospital, Tohana which has no better facility than that of the answering op. However, what happened thereafter cannot be attributable to the answering op. It is specifically submitted that no negligence is committed by the hospital/ staff and operating doctor during and after the operation. With these averments, dismissal of complaint has been prayed for.
5. The complainant produced his affidavit Annexure CW1 and copies of documents i.e. medical records and bills etc. as Annexures C1 to C160. On the other hand, ops produced affidavit Annexure R1, affidavit of op no.1 Annexure R2 and copies of documents Annexures R3 to R9.
6. We have heard learned counsel for the parties and have perused the case file carefully.
7. First of all, we would like to mention here that admittedly the operation of the complainant was conducted by opposite party no.1 on 13.2.2013 and the complainant has tried to say by alleging that opposite party no.1 was so much negligent that even during the operation of the complainant, the op no.1 received the telephonic call from someone and started to talk on telephone while operating the complainant and as such the op no.1 committed grave negligence and due to oversight, the op no.1 did not stitch that portion/ part of the body properly and did not give proper attention during the operation of the complainant and leakage was left in the operation and in a very casual manner he operated the complainant. However the above said allegation in the complaint does not scene to be true and correct because it is a fact of common knowledge that no personal belongings are taken by the surgeon and staff in the operation theatre. Further, the allegation close not seen is be correct as because before performing such like surgeries, anesthesia is given to the patient and it is categorical stand of the op no.1 that as the surgery in question was a major one, the complainant was under the effect of complete anesthesia. It is also a fact of common knowledge that under the effect of complete anesthesia, it is not even known to the patient that what is being done to his body and major cut is given to the body for such type of surgeries which can only be given after making the patient unconscious. Though such type of allegations are only false and baseless and cannot be looked into, even then for the sake of argument, if it is believed that complainant was semi conscious and he was feeling that the doctor was talking on his mobile phone, then a clear cut case of medical negligence is made out against the op doctor but as the operation was conducted on 13.2.2013 and present complaint has been filed on 6.11.2015 with alleged further consequences/ complications due to operation conducted by the op no.1, we are of the considered opinion that present complaint is time barred as same has not been filed within two years as per provisions of Section 24 of the Consumer Protection Act, 1986 as if the allegations of the complainant are believed in toto that op no.1 was so negligent that he used the mobile while operating the complainant and due to medical negligence op no.1 he had to rush to various hospitals on 18.2.2013 and 26.2.2013, then it is also to be seen that negligence of the op doctor came into the knowledge of the complainant on the day of operation itself and therefore, the cause of action arose to the complainant on the day of operation itself i.e. on 13.2.2013 but the present complaint has been filed only on 6.11.2015 i.e. after a delay of two years and nine months without explaining the cause for such delay. So, we hold that present complaint is not maintainable being time barred.
8. Even on merits, the complainant has failed to make out a case against the opposite parties. Admittedly, the complainant was operated in the hospital of op no.2 by op no.1 on 13.2.2013 for gall stone and thereafter he was shifted to Government Medical Hospital, Sector 32, Chandigarh on 18.2.2013 where he was given treatment and was discharged on 23.2.2013. Then he was taken to Rajasthan Medical Centre, Tohana on 26.2.2013 and from there he was referred to D.M.C. Ludhiana but none of the doctors of the said hospital has opined that above said problem of bile leakage after surgery was only due to the negligence of the opposite party no.1 and not due to complication after the surgery. There is no expert opinion on file to prove any medical negligence of the opposite party no.1 in operating the complainant. From the record available on file, it is well proved that opposite party no.1 is a qualified medical surgeon and he has fully explained in his written statement that with great efforts, the gall bladder was separated from CBD and neighboring structures and was excised from its annuli and at the time of surgery, there was no bile collection in the gall bladder fossa. Post operative ultrasound was also done on 16.2.2013 so as to see the intra abdominal collection and when doubted, the patient was immediately referred to higher Centre and they preferred to go to Dr. Sunil Arya for ERCP and from the document Annexure R3 of Saraswati Gastro Care Centre, it is evident that Dr. Sunil Arya opined that selective CBD cannulation was not possible and the patient was referred back to City Max Hospital, Tohana and was also advised for repeat conciliation after 3 days. So, from the medical reports available on file of different hospitals as well as diagnosis centre, it is not proved that there was any type of medical negligence on behalf of the opposite party no.1 while operating the complainant. Rather from the literature produced on record by the op no.1 as Annexure R4, it is evident that such type of complication like bile leakage can occur after such types of surgery. In the said literature even it is mentioned that in summary, injury to the extrahepatic billary tract is very serious problem and is almost certainly more common in the new era of the laparoscopic approach to removal of the gall bladder. Injury to these ductal structure is an acknowledged complication and does not necessarily represent medical negligence. Transfer of the patient (following an initial period of stabilization) to a referral center that has experience with repair of these ductal injuries is frequently necessary and indeed is within the best interest of the patient.
9. Further, merely because the complication of bile leakage arose after few days of the surgery, the same does not if-so-facto raise any conclusion that doctor was negligent in performing the operation. No expert has been examined in this regard, neither the matter was referred to the Board of doctors for giving opinion. Consumer Forums are not experts in medical science and, therefore, they should not substitute their own views over that of specialists. Reference in this regard may be placed on the case titled as Martin F.D’Souza Versus Mohd. Ishfaq, 2009 (1) Supreme Court Cases (Criminal), 958. Further Medical professionals are not to be unnecessarily harassed or humiliated so that they can perform their duties without fear and apprehension. Malicious prosecution against medical professors/ hospitals for extracting uncalled for compensation is not maintainable. Reference may be made in case titled as Kusum Sharma Versus Batra Hospital and Medical Research Centre and Ors., AIR 2010 Supreme Court 1050. In State of Punjab Vs. Shiv Ram & Ors. IV (2005) CPJ 14 (SC), the Hon’ble Supreme Court has held that “A doctor, in essence, needs to be inventive and has to take snap decisions especially in the course of performing surgery when some unexpected problems crop up or complication sets in. If the medical profession, as a whole, is hemmed in by threat of action, criminal and civil, the consequence will be loss to the patients. No doctor would take a risk, a justifiable risk in the circumstances of a given case, and try to save his patient from a complicated disease or in the face of an unexpected problem that confronts him during the treatment or the surgery. The authority State Consumer Disputes Redressal Commission, Punjab relied by learned counsel for the opposite parties in case titled as Dr. Ujagar Singh Vs. Smt. Murti Devi & anr. FA No.537 of 2013 decided on 11.4.2016 is also squarely applicable to the facts and circumstances of the present case.
10. Thus, as a sequel to our above discussion, the complainant has miserably failed to prove his case against the opposite parties. Hence, the present complaint is hereby dismissed being barred by limitation and being devoid of merits also. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. (Raghbir Singh)
Dated: 16.8.2017. President
District Consumer Disputes Redressal Forum, Fatehabad.
(R.S. Panghal) (Ansuya Bishnoi)
Member Member
