BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 163 of 2015.
Date of Institution : 18.9.2015
Date of Decision : 10.3.2017.
Munish Jain aged 28 years son of Shri Suresh Jain, resident of Gali Boarding Wali, Suratgaria Bazar, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
1. Dr. G.S. Gupta, Sigma Hospital, Sirsa, Tehsil and District Sirsa.
2. The Oriental Insurance Company Limited, Branch office at 134/135 Sahu Plaza Building, 3rd floor, Sneh Nagar, Alam Bagh, Luchnow-226005 (UP) through its Divisional Manager, vide policy No.221303/48/2014/1952 w.e.f. 12.12.2013 to 11.12.2014.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH.S.B.LOHIA………………. ……PRESIDENT.
SHRI RANBIR SINGH PANGHAL ……… MEMBER.
Present: Sh. Pankaj Singal, Advocate for the complainant.
Sh. A.K. Gupta, Advocate for opposite party No.1.
Sh. A.S. Kalra, Advocate for opposite party no.2.
ORDER
The case of complainant in brief is that about twenty months ago, he was having acute pain in the veins of his left leg and as the pain was increasing day by day, therefore, he approached Dr. Sanjeev Goyal and on consultation with doctor, he was advised ultrasound from Garg Diagnostic Centre, Sirsa. Accordingly, the complainant got conducted ultrasound from Garg Diagnostic Centre, Sirsa on 3.3.2014 but it was reported that both testis are normal and as per the report, there was no evidence of hernia. That as the pain still remained in the veins, therefore, he again approached Dr. Goyal and he was advised to contact and get surgeon opinion in this regard. Accordingly, the complainant contacted Dr. G.S. Gupta, Sigma Hospital, Dabwali road, Sirsa on 5.3.2014 who after checking the complainant advised operation of Varicocele of his left leg. As the pain was acute and was intolerable for him, thus he got himself operated from Dr. G.S. Gupta on 10.3.2014 and remainder under treatment as indoor patient for three days. After three days, the complainant was discharged from the hospital. It is further alleged that as the complainant was feeling the left side testicle missing, he contacted Dr. Gupta and on consultation the doctor stated that it is not the matter of worry and held the condition of the leg of complainant to be normal. The complainant in this regard numerous times intimated the said doctor but he reported no abnormality in the matter. After the operation, there was acute pain of varicovain whereas the varicovain was having no concern or connection of any kind with varicocele. It is further alleged that there was no improvement in the condition of leg of complainant and as such he visited the op no.1 for a number of times and requested him to put him in comfort but the op no.1 kept on avoiding the complainant simply saying that it is common after operation. He further assured that with the passage of time, his condition will become ok and advised to take medicines time to time. It is further alleged that as there was no improvement in the condition of complainant, hence he got himself checked from Vishal Ultra Sound and Diagnostic centre, Sirsa on 4.8.2015 and the right testis was reported to be normal in size, shape and position but the left scrotal sac showed presence of a small hypoechoic area. Thereafter, the complainant again got conducted ultra sound from Dr. Sanjeev Goyal on 10.8.2015 and to the surprise of the complainant, it was reported that left testis is not seen. That after coming to know about this fact, the complainant contacted the op no.1 and remonstrated the op no.1 but he did not admit his fault rather started misbehaving with the complainant. That the act on the part of op no.1 clearly amounts to deficiency in service and unfair trade practice and the complainant is entitled to compensation of Rs.10,00,000/- from the opposite parties. Hence, this complaint.
2. On notice, opposite party no.1 appeared, filed written statement and contested the case of complainant with the averments that complainant has concealed the true and material facts from this Forum. As a matter of fact the complainant was suffering from varicocele left side scrotum which means a dilatations of veins of the spermatic cord and for that the complainant approached Dr. Sanjeev Goyal, a skin specialist who referred the complainant for ultrasound examination and on 3.3.2014, the ultrasound examination was done at Garg Diagnostic Centre, Sirsa who has given a categorical opinion that the complainant was suffering from varicocele left side and accordingly Dr. Sanjeev Goyal referred him for surgical intervention. The complainant accordingly approached the answering op and answering op examined the patient clinically as well as the ultrasound report and confirmed varicocele of left scrotum and advised for surgical operation which is the most accepted and standard treatment of varicocele. In this procedure the ligation of the veins collecting blood from the testis which are dilated are legated by giving an incision in the inguinal area (which is atleast 5 to 6 inches away from the scrotum. In this surgery there is no incision given to any part of the scrotum and the testis are not even touched. The legation is provided at the far end of the veins collecting blood from the testis, so it is a totally false story made by complainant that the testis has been removed by the surgeon/ answering op at the time of operation. The complainant after the operation was discharged on the next day of the operation in a fine condition and there was no complication whatsoever. The patient had been coming to the answering op for follow-up treatment in OPD. It has been further submitted that after about six weeks of the operation, the patient had come to the answering op with the swelling of the left scrotum and was diagnosed as acute epididymoorchitis left side. The said problem/ medical condition is totally different to the varicocele. Epididymoorchitis is caused due to entirely different reasons i.e. infection from the urinary tract, hematogenous spread (blood born), viral infection, bladder outlet obstruction and STD in sexually active male. All these causes are non surgical and cannot result from any surgery. The complainant was accordingly advised the antibiotic and anti-inflammatory supportive treatment for acute epididymoorchitis. It is one of the complication of this disease that the testis undergoes abscess formation, infarction and atrophy. The complainant has not been operated for the removal of testis any stage by answering op. It has been further submitted that the complainant has wrongly averred in the complaint that he had acute pain in the veins of left leg. This version is a concocted version only. Generally there cannot be acute pain in the upper leg as alleged due to varicose vein at the ankle. The complainant has not put forth any record of treatment or investigations before this operation conducted by the answering op regarding varicose vein as alleged. The answering op is highly qualified General Surgeon and after passing the degree of MS, he has been running his own private hospital for the last 11 years and has performed thousand of successful surgeries. The hospital of the op is well equipped with all types of infrastructure and operation theaters and the op is having a fully trained staff for after care of the patients. The op has taken every care and took all the test, which are necessary for treatment and diagnosis of acute epididymoorchitis when the complainant approached after about six weeks of the operation with the problem of swelling. The complainant willfully and intentionally has not produced those reports alongwith the complaint and has withheld the records. The op is having only record of indoor patient but whenever the patient is treated on OPD basis all records and medical reports are always carried back by the patient. The non production of the records which are with the complainant entails adverse inference against him. It has also been submitted that had the testis been removed by the op definitely the same would have come to the notice of complainant immediately and this is not a fact which can be revealed only on ultrasound examination. There is a atrophy of the left testis on account of epdidymoorchities which is unrelated to the vericocele and moreover atrophy is a slow process. The op has conducted the surgery as per the medical recognized methods and there is no deficiency on the part of answering op. With these averments, dismissal of complaint has been prayed for.
3. On being impleaded, the Oriental Insurance company limited as op no.2, the said insurance company appeared through counsel and filed written statement submitting therein that term and conditions of the policy clearly states that in the happening of any event or receipt of summons from any court of law, insured-doctor will immediately intimate the company and will extend co-operation in defending the litigation, but in the present matter, op no.1 failed to abide by the terms and conditions of the policy and due to this deliberate and willful breach of term and conditions of the policy, answering op should not be burdened with any liability. Without acknowledging any admission, treatment and diagnose by op no.1 or any lapses or wrong on the part of complainant or op no.1, it is submitted that op no.1/ doctor was insured with the maximum indemnification from 12.12.2013 to 11.12.2014 for the sum of Rs.5,00,000/- only subject to compliance of term and conditions of the policy, that also where the court gives a finding that doctor committed the medical negligence. The false assertion of complainant regarding medical negligence on the part of op no.1 is not sufficient enough to hold the doctor liable for medical negligence rather in view of peculiar facts and circumstances of the case, complainant should adduce, bring and prove the medical negligence by way of expert evidence. Besides this, the written statement filed by op no.1 has also been opted.
4. By way of evidence, complainant produced his affidavit Ex.C1, affidavit of Sh. Suresh Jain Ex.C2, copy of ultrasound report dated 3.3.2014 Ex.C3, copy of prescription slip of op no.1 dated 5.3.2014 Ex.C4, copy of chart Ex.C5 and Ex.C6, copy of summary Ex.C7, copy of medical slip Ex.C8, copy of laboratory test report Ex.C9, copy of ultrasound report Ex.C10, copy of report of colour Doppler of scrotum system dated 4.8.2015 Ex.C11, copy of report Ex.C12. On the other hand, op no.1 produced his affidavit Ex.R1, affidavit of Dr. Vishal Garg, Interventional Radiologist Ex.R2, affidavit of Dr. Ashok Gupta, M.D., Radiologist Ex.R3, affidavit of Dr. Azad Singh, General Surgeon Ex.R4. OP no.2 produced affidavit Ex.R5 and copy of policy Ex.R6.
5. We have heard learned counsel for the parties and have gone through the case file carefully.
6. To substantiate the case of the complainant, learned counsel for complainant has relied upon report of ultrasound of Garg Diagnostic Centre, Sirsa dated 3.3.2014 Ex.C3 wherein it is mentioned that both testis are normal in size, shape and position and varicocele left side was opined. Then it is the version of the complainant that after operation of varicocele conducted by op-doctor on 10.3.2014, he was not alright and was feeling pain and in the ultrasound report dated 10.8.2015, it is reported that left testis is not seen and in this regard learned counsel for complainant has relied report of ultrasound scrotum conducted by Dr. Sanjeev Kaushal dated 10.8.2015 Ex.C10. He has also relied report of colour Doppler of scrotum system of Vishal Ultrasound & Diagnostic Centre dated 4.8.2015 Ex.C11 wherein small/ atrophied left testis is mentioned. Relying upon said reports, learned counsel for complainant has prayed for acceptance of the complaint.
7. On the other hand, learned counsel for opposite party no.1 has reiterated the version of written statement and prayed for dismissal of complaint. Ld. counsel for op no.2 has also reiterated the version of written statement filed by op no.2.
8. We have considered the rival contentions of the parties. In the ultrasound report of Garg Diagnostic Centre, Sirsa (copy Ex.C3) after conducting ultrasound of complainant on 3.3.2014, varicocele left side was opined and then the op-doctor on 5.3.2014 diagnosed the disease of complainant as varicocele left side and advised for surgery as is evident from copy of prescription slip dated 5.3.2014 Ex.C4. The surgery of the complainant was conducted by opposite party no.1 on 10.3.2014. In the report dated 3.3.2014 Ex.C3 it is mentioned that both testis are normal in size, shape and position. Then in the report of colour Doppler of scrotum of complainant dated 4.8.2015 Ex.C11, small/ atrophied test testis is mentioned. Whereas in the report of ultrasound of scrotum of complainant conducted by Dr. Sanjeev Kaushal on 10.8.2015 (copy Ex.C10), it is mentioned that left testis is not seen. It is the specific stand of the opposite party no.1-doctor that in the procedure of ligation of the veins collecting blood from the testis which are dilated are legated by giving an incision in the inguinal area which is atleast 5 to 6 inches away from the scrotum. In this surgery there is no incision given to any part of the scrotum and the testis are not even touched. The complainant had come to him after about six weeks of the operation with the swelling of left scrotum and he very carefully examined him and found that he was suffering from acute epdidymoorchitis which is caused entirely due to different reasons unrelated to the surgery of varicocele. The complainant has not proved his version by any medical/ expert evidence that he lost his left testis due to any medical negligence on the part of op-doctor. Whereas the op-doctor besides his affidavit has also placed on file affidavit of Dr. Vishal Garg, Interventional Radiologist, Vishal Ultrasound as Ex.R2 who has testified that patient Manish Jain was examined by him on 4.8.2015, he had undergone surgery/ operation for varicocele of scrotum left side about 18 months back and not for varicose veins of legs. The complainant had undergone atrophy of the left testis due to epididymoorchitis, which has no concern with the varicose vein of leg and varicose vein was probably first diagnosed after 18 months of surgery by dopper ultrasound at the clinic of deponent. He has further testified that he has gone through the complaint on the basis of report dated 4.8.2015 which is totally misconceived and false. The op no.1 has also placed on file affidavit of Dr. Ashok Gupta, M.D., Radiologist, Sirsa as Ex.R3 in which he has testified that he is post graduate M.D. Radiology and has a large experience in the field of Radiology. He has worked as Radiologist in Civil Hospital, Sirsa for more than 10 years and thereafter has been running his own diagnostic centre for the last more than five years. He has testified that during the ultrasound examination of a patient, the history of the patient is to be disclosed by the patient and if the patient does not give the proper history, then the atrophied testis can be missed on routine ultrasound examination. There is also affidavit of Dr. Azad Singh, General Surgeon, MBBS, MS Azad Hospital, Sirsa Ex.R4 placed on file by op-doctor in which the said doctor has testified that he is a General Surgeon and after passing his MS has been running his hospital and has conducted thousands of successful surgeries including the varicocele of scrotum. As per the medical terms the varicocele and varicose vein of the legs are totally different conditions. In varicocele, the surgery is carried out through an inguinal approach in which the inguinal canal is opened and the dilated vein are legated. The question of excision of testis does not arise. He has also testified that aforesaid procedure for operation is most recognized and standard treatment of the varicocele. He has gone through the complaint filed by complainant and also the records of treatment. The complainant has made a totally false complaint having no basis as atrophy of testis can occur after epididymoorchitis which is unrelated to varicocele. The treatment of the patient Manish Jain has been done according to the recognized principles of surgery. Therefore, the op-doctor who is an expert medical practitioner himself and by other medical experts persons have duly proved that the complaint is misconceived and false one and reason of subsequent disease of the complainant is entirely different and not due to any medical negligence on the part of op-doctor. Except the oral version of complainant, there is no expert/ medical opinion on file to prove his case. The complainant has not been able to prove that his left testis was even touched by op-doctor or that there are stitches on the part of scrotum.
9. Thus, as a sequel to our above discussion, we find no merit in the present complaint and same is hereby dismissed with no order as to cost. A copy of this order be supplied to the parties as per rules. File be consigned to record room after due compliance.
Announced in open Forum. President,
Dated: 10.3.2017. Member. District Consumer Disputes
Redressal Forum, Sirsa.
