DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No:62 of 2010] Date of Institution : 29.01.2010 Date of Decision : 07.12.2011 --------------------------------------- Mrs. Shubh Thakur wife of Sh. K. S. Thakur, Age about 46 years resident of House No.787, Sector 19, Panchkula. ---Complainant. V E R S U S 1. Dr. Mangla Dogra owner of Dogra Nursing Home & Endoscopy Centre, House No.8, Sector 19-A, Chandigarh – 160019. 2. Dr. N. S. Sandhu, Anesthesia, Doctor C/o Dogra Nursing Home & Endoscopy Centre, House No.8, Sector 19-A, Chandigarh – 160019. 3. Dr. Ashutosh Sharma C/o Dogra Nursing Home & Endoscopy Centre, House No.8, Sector 19-A, Chandigarh – 160019. 4. Staff Nurse Sister Grej Dogra Nursing Home & Endoscopy Centre, House No.8, Sector 19-A, Chandigarh – 160019. (Deleted vide order dated 12.10.2010). 5. Dhawan Hospital, SCO No.90, Sector 5, (Opposite Backside Vatika), Panchkula. 6. The New India Assurance Company Limited, SCO No.15, Sector 30-D, Chandigarh through its Divisional Manager. 7. The New India Assurance Company Limited, 100 The Mall PB No.25, Ambala Cantt. – 133001 through its Divisional Manager. 8. National Insurance Company Limited, SCO No.133-135, Sector 17-C, Chandigarh through its Divisional Manager. ---Opposite Parties BEFORE: SMT. MADHU MUTNEJA PRESIDING MEMBER SH. JASWINDER SINGH SIDHU MEMBER Argued By: Sh. Arun Sharma, Advocate for the complainant. Ms. Alka Sareen, Advocate for OP No.1. Sh. Munish Kapila, Advocate for OPs No.2 and 3. OP No.4 deleted. Sh. J. S. Mann, Advocate proxy for Sh. Vaibhav Narang, Advocate for OP No.5. Sh. Vinod Chaudhary, Advocate for OPs No.6 and 7. Sh. Rajneesh Malhotra, Advocate for OP No.8. PER MADHU MUTNEJA, PRESIDING MEMBER. 1. Factually speaking, the complainant was taking medical treatment from OP No.1 for painful menstruation since 19.05.2008. After the clinical laboratory examination, OP No.1 had recommended the removal of tube and right ovary of the complainant through laparoscopic operation. The complainant was admitted in Dogra Nursing Home and the operation was performed on the complainant on 13.6.2008 by OP No.1. The complainant was discharged from the hospital the next day. 2. The complainant has made the allegation that after the operation, certain portion of her abdomen had swelled and there was severe pain in the operated area. When she contacted, OP No.1 the doctor told her that the swelling was a normal after effect of the operation and would soon settle. As per the complainant, three holes had been made on her abdomen by OP No.1 at the time of surgery, which were required to be stitched after the surgery. She has alleged that these holes were left unstitched by the OPs, which in the succeeding months led to the complication of Incisional Hernia, which is the focus of the instant complaint. 3. The complainant has stated that she kept visiting the OPs for follow-up and remedial treatment due to the pain till 19.9.2008. OP No.1 had also advised the complainant that the bulges on her abdomen were due to gas formation and urinary infection. She was put on a course of Tab. Renteck for infection and Nimulid for pain. 4. As the complainant was not getting any relief from the pain despite so many visits to OP no.1, she visited another doctor on 25.2.2009 in Baltana. This doctor referred her to Dhawan Hospital, Sector 5, Panchkula. The complainant was admitted in Dhawan Hospital the same day under emergency condition with swear pain and swelling. Dr. Dhawan conducted an operation the next day i.e. on 26.2.2009 and a mesh was placed to plug the port side hole for which the complainant incurred an expenditure of Rs.90,000/-. It was, at this stage that the complainant realized that during the laparascopic surgery performed by OP No.1, out of three holes made by the OPs, one was left unstitched, which had resulted into this Incisional Hernia. 5. The complainant has alleged that she has suffered unbearable and severe pain continuously for 8 ½ months apart from mental tension and torture due to the negligence of OP No.1. Due to this complication, even the muscles of the complainant had got affected. 6. The complainant thus visited OP no.1 again on 16.3.2009 and apprised OP No.1 about the lapses in the surgery conducted by her and her team due to which the complainant had been continuously suffering for the past so many months. The complainant has alleged that OP No.1 admitted her fault and agreed to refund the expenses incurred by the complainant at the Nursing Home run by OP No.1 but has not yet complied with her commitment. The complainant thus served a legal notice dated 11.4.2009 upon OP No.1 for compliance. As no positive response was received, the complainant has filed this complaint by raising the following issues: - (a) If the team of OPs No.1 to 4 had left the hole in the abdomen unstitched? (b) If the Incisional Hernia was caused due to negligence of OPs No.1 to 4? (c) If OPs No.1 to 4 were responsible for not informing her that the unstitched hole had developed into Incisional Hernia, which could even lead to death? (d) Whether OPs No.1 to 4 are negligent in handling her case specially when she regularly visited them for post operative treatment? (e) Whether OP No.1 was knowingly keeping the patient in the dark and meanwhile asking her to undergo unnecessary tests? (f) If the conduct of OP No.1 in this case is against professional ethics for which the doctor’s profession stands? 7. The complainant has prayed for compensation of Rs.5 Lacs besides costs of litigation against the OPs for continuous negligent treatment and also keeping her in dark about the development of Incisional Hernia in her body. 8. The complainant has attached the complete case file along with Annexures C-1 to C-47, which also includes medicinal bills and records maintained by all the OPs as well as Dhawan Hospital. 9. As the matter was of alleged medical negligence, the matter was referred to the Director/Principal, G.M.C.H, Sector 32, Chandigarh with a request to constitute a committee of doctors to establish whether any case of medical negligence was made out. This was in conformity with the decision taken by the Hon’ble Supreme Court in case titled Martin F.D. Souza Vs. Mohd. Ishfaq, Civil Appeal No.3541 of 2001 decided on 17.2.2009. 10. The Director, G.M.C.H, Sector 32, Chandigarh constituted a committee to examine the matter and give its opinion. The final conclusion of the committee dated 16.3.2010 as under: - “1. It is not evident from the records provided that patient had any evidence of hernia after the laparoscopic surgery when she went for post operative follow-up. The available records show that she had recurrent UTI for which she was treated. 2. However, when patient visited Dr. Dhawan’s nursing home on 25.02.09, Incisional hernia at port site was diagnosed and surgery for same was performed. 3. Even after optimal laparoscopic surgery, the incidence of Incisional hernia is 1% with the range of 0.02 to 5%. (Reference Clinical Obstetrics & Gynaecology, September 2009, Vol.52, o.3, Page 409). 4. As per the available records, no negligence on the part of operating surgeon is evident.” A copy of the aforesaid report was also supplied to the complainant. 11. The learned counsel for the complainant thereafter placed on record copy of the judgment by the Hon’ble Supreme Court in the case titled as V. Kishan Aro Vs. Nikhil Super Speciality Hospital & Another reported as 2010 (2) RCR (Criminal) 878 wherein it was held that medical opinion was not necessary before issuance of notice to the OP. Relying on this judgment, notice was issued to the OPs. 12. OPs No.1, 2 and 3 have filed separate replies. They have also submitted written arguments. As per their pleadings, they have categorically denied that the formation of Hernia was a complication, which arose out of the surgery conducted by them on the complainant, even though the port site hernia is a known complication of laparascopic surgery and this fact had been mentioned in the informed consent duly signed by the complainant and her husband. 13. On merits, these OPs have admitted that the complainant underwent surgery with them on 14.6.2008 and continued under their treatment till 25.2.2009. There is no evidence on the prescription file placed on record that she visited any doctor or even the OPs with the complaint of hernia. The Discharge Slip on record only relates to problems of urinary infection and irregular bleeding for which the complainant was adequately treated. 14. The complainant visited Dhawan Hospital on 25.5.2009 for the first time (as per records produced by her) where she was diagnosed for Hernia. 15. On facts, OPs have submitted that the complainant first visited them on 8.5.2008. In the Obstetric History given by the patient to doctor, she informed that she had had two normal deliveries and one surgery prior to that. On examination, a vertical scar was seen on her abdomen. The complainant did not produce any papers pertaining to her previous surgery. The Ultrasound report brought in by the patient revealed a bulky uterus and a complex Cyst in the right ovary….(Endometriosis). The complainant was put on a course of antibiotics and was recommended for laparoscopic salpingo-oophorectomy (removal of right tube and ovary). Pre-operative checks were advised, which revealed that the complainant was fit for surgery. The operation was conducted on 13.6.2008 without any complication. Even the histopathology-cytopathology report dated 20.6.2008 confirmed the diagnosis by the OPs that the patient had suffered from right ovarian endometriosis. The operation was successful and the complainant thereafter returned to the OPs with pain in her abdomen which the OPs diagnosed as urinary infection. 16. According to these OPs, the complainant did not visit them for any further treatment after being cured of urinary infection. Ops have contended that a perusal of Discharge Slip written by Dr. Dhawan and attached by the complainant herself, states that she had approached Dr. Dhawan with irreducible tender swelling. This was diagnosed as incarcenated incision hernia R/F (port site), which needed immediate operation as it was a medical emergency. However, a perusal of history/clinical opinion written by Dr. Dhawan has revealed that the patient had gone there for surgical treatment and not in an emergency condition. There is also no Ultrasound report or any prescription to substantiate the allegation that the complainant had been suffering from hernia from the past eight months prior to approaching Dr. Dhawan. 17. OPs have relied on case of C.V.S.R Prasad Vs. Sri Vasunda Nursing Home & Others, reported as 2007 (3) CPR 283 (NC) wherein it was held that where medical negligence is being alleged, it is incumbent on the complainant to give specific instances of the act of omission and commission on the part of the doctor and the hospital for which onus of proof lies on the complainant. Relying on well known Bolams Test and the principles of negligence, OPs have contended that the doctors have acted in accordance with the standards of reasonably competent medical skill and are not negligent in any way. 18. OPs have relied on literature from a study conducted by the Department of Surgery, UCLA School of Medicine, Los Angeles, California, U.S.A. (Annexure OP-1/4) and have categorically denied that hernia formation was due to any muscle hole being left unstitched. The complainant never visited OP No.1 with any complaint of hernia as alleged. All reports and records relate to urine infection only for which she was adequately treated and cured. She was always attended to properly in each visit, which is why she never visited any other doctor for her ailment during the course of treatment. 19. Also OPs have categorically denied that formation of hernia was anyway related to the surgery conducted by OP No.1. In support of their averments, OPs have drawn attention to the report of G.M.C.H, already brought on record and received by this Forum at the initial stage before issuing notice of complaint to OPs. Even as per this report, OPs have contended that there is no evidence brought by the complainant to prove any negligence on their part. OP No.1 being the operating doctor and OPs No.2 and 3 being the assisting doctors at the time of surgery have thus prayed for dismissal of the complaint. 20. As per the statement of the learned counsel for the complainant, the name of OP No.4 was deleted from the array of OPs vide order dated 12.10.2010. 21. OP No.5 (Dr. Dhawan) did not file reply. However, OP No.5 joined the proceedings at the time of arguments. 22. OPs No.6 and 7 - (Insurance Companies) adopted the replies filed by OPs No.1 and 3. 23. Meanwhile, OP No.2 moved an application for impleading OP No.8 as a party as he was insured by them. The application was allowed and OP No.8 was impleaded as a party to the complaint. OP No.8 has also filed reply. 24. OP No.8 - (National Insurance Company Limited) in its reply has stated that it had provided insurance to OP No.2 for the period 18.12.2008 to 17.12.2009. The alleged operation was conducted upon the complainant on 14.6.2008, which is prior to the policy period. However, in case any policy is provided by the Insured during the pendency of the complaint, then OP No.8 reserves the right to file a fresh written statement. Denying most of the allegations for want of knowledge, OP No.8 has prayed for dismissal of the complaint. 25. OPs No.6 and 7, who are the insurers of OP No.1 and OP No.3, have submitted written arguments. In the written arguments, they have submitted that the Hon’ble Apex Court has held that a doctor cannot be held liable for mischance or misadventure or even for an error of judgment. The complainant was only symptomatic for urine infection and the symptoms cannot even remotely be associated with hernia. Otherwise also, Dr. Mangla Dogra enjoyed an enviable reputation as one of the most successful gynecologist in Northern India. There is no evidence on record to show that doctors were negligent in any manner and there is no expert evidence to corroborate the false assertions made by the complainant. The Medical Board has also opined clearly that there was no negligence on the part of the operating surgeon. They have thus also prayed for dismissal of the complaint. 26. All the parties filed their evidence by way of affidavits along with relevant documents. 27. We have heard the learned counsel for the parties and have gone through the documents on record. 28. The complaint has been filed with the allegations of the alleged deficiency in service by OPs No.1 to 3 in providing medical treatment to the complainant. The complainant had visited them first time in May 2008 with problem of painful menstruation. The cause of the problem was diagnosed by the OPs and the patient was recommended for removal of tube and right ovary through laparoscopic operation. The operation was successfully performed on 13.6.2008 and the patient was discharged from the hospital. Certain swelling noted on the abdomen after the operation and pointed out that the OPs were said to be temporary after effects of the operation. The complainant also visited the OPs subsequently for pain, which was diagnosed as urinary infection. There is no assertion about the treatment given to establish negligence or inadequacy. 29. The complainant has made assertions that as her pain was not improving, she was recommended by the doctor at Baltana to visit Dr. Dhawan (OP No.5) for treatment of hernia. 30. It is at this time that she realized that three incisions had been given to her by the OPs at the time of operation and one of them had not been stitched up. She has alleged that the Incisional Hernia diagnosed by OP No.5 was due to this lapse by OP No.1. OP No.5 had conducted the operation on the patient under emergency conditions. The complainant had thus alleged that the whole treatment has caused her continuous unbearable and severe pain besides monetary loss, mental tension and torture. The focal point of all her problems, according to her, is the negligent surgery and subsequent treatment given to her by OPs No.1 to 3. The issues raised by her deal with the fact whether a hole had been left unstitched and whether the Incisional Hernia was caused due to non-stitching of this hole. No allegation about qualification/diagnosis/operation competency and misjudgment has been made by the complainant on the part of treating doctors. In the case of P.G.I Vs. Jaspal Singh, 2009 (7) SCC 330, it has been held that the burden of proof is on the claimant to establish connection between breach of duty and injury suffered. The injury must be sufficiently proximate to the medical practitioner’s breach of duty. 31. A perusal of the file of OP No.5 placed on record shows that the allegations made have not been substantiated by any cogent evidence or reference by OP No.5 in his discharge summary. In this context, the findings of Dr. Dhawan as recorded in the Discharge Record at Page No.71 of the paper book are as under: - “R/F – Irreducible/Tender Swelling – 12 x 15 cm, which use to reduce previously in lying down but not this time x 1 ½ days…….. Prosthesis: Patient was symptomatic 8 months back since patient went for operation laparoscopic surgery for rt. ovarian mass and rt. systectomy ovarectomy operation & GA since then patient noticed reducible swelling rt. Port since then with swear pain since then…..” 32. The Ultrasound conducted by the same doctor gave the following findings: - “THERE IS 20 MM IN LONGITUDINAL AND 6 MM IN WIDTH GAP IN THE MUSCLE PLANE OF TRANSVERSE ABDOMINIS MUSCLE IN THE RIF REGION. THE GUT AND OMENTUM ARE SEEN TO BE THE CONTENTS OF THE HERNIAL SAC IN THIS REGION. THE SAC HAS THE VOLUME OF 20 CM CUBE. THE CONTENTS ARE REDUCIBLE. THE GUT LOOPS HAVE NORMAL PERISTALSIS WITH NO MURAL EDEMA/LOSS OF VACULARITY ON COLOR DOPPLER. NO E/O INCARCENATION/STRANGULATION OF THE GUT LOOPS IN THE PRESENT STUDY.” 33. There is no clear noting by OP No.5 to point to any mistake in the surgery conducted by OPs No.1 to 3 on the patient 8 months earlier. There is no reference to the earlier file maintained by the patient in support of his observations. There is also no observation to support the treatment/ surgery performed by him upon the patient. 34. Interestingly when the complaint was filed, OP No.5 has not felt it necessary even to file reply to the averments made in the complaint. Even though, a learned counsel was present at the time of arguments on behalf of OP No.5. No observation was made by him that he had found lapses in the surgery conducted by OPs No.1 to 3. 35. Applying Bolams test, as referred in all the cases of medical negligence, we feel that there is no contention by the complainant that the OPs have in any way faulted in the standard of care and skill at the time of providing medical treatment to the complainant. A doctor is not guilty of medical 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, merely because there is a body of such opinion that take a contrary view. 36. In the case of Jacob Mathew v. State of Punjab reported as (2005) 6 SCC 1, the Hon’ble Apex Court has held as under: - “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.” 37. The report dated 16.3.2010 of G.M.C.H, Sector 32, Chandigarh has categorically exonerates the operating surgeon from the allegations of the complainant. As per this report, there was no evidence of hernia after the laparoscopic surgery when the patient went for post-operative follow up. The medical literature placed on record by the complainant about Incisional Hernia states “Incisional hernia in the abdomen is due to weakness of the wall of the surgical scar and lead to protrusion of the intestine”. 38. In the case of Martin F. D’Souza Vs. Mohd. Ishfaq reported as I (2009) CPJ 32, the Hon’ble Apex Court has held in Para No.111 as under: - “111. The courts and the Consumer For a are not experts in medical science, and must not substitute their own views over that of specialists. It is true that the medical profession has to an extent become commercialized and there are many doctors who depart from their Hippocratic oath for their selfish ends of making money. However, the entire medical fraternity cannot be blamed or branded as lacking in integrity or competence just because of some bad apples.” 39. Further, in the case of Tara Chand Jain Vs. Sri Ganga Ram Hospital reported as 2005 (13) SCC 648, it was held that as pivotal documents do not substantiate the case and allegations of negligence are not established. 40. In the case of Smt. Kusum Sharma & Ors. v. Batra Hospital and Medical Research Centre & Ors., III (2000) CPJ 18 (NC)=2000 CTJ 814 (CP), the Hon’ble Apex Court has held as under: - “Medical Services-Claim of medical negligence – Duty of courts to protect medical practitioners acting in good faith against unnecessary harassment, emphasized – Marked tendency on part of complainants to look for a human factor to blame the doctor after happening of an untoward event,…” 41. In view of the position of law regarding medical negligence and cases as referred to above, we feel that in the instant case, the complainant has not specifically been able to prove that an incision made by the OPs at the time of conducting surgery on her remained unstitched and the hernia occurred as a consequence of the same. OPs have already contended that the complainant had had a surgery earlier also. The weakening in the muscle could be due to the earlier abdominal surgery too. In the absence of any specific proof, the stray averment by the complainant cannot be accepted. 42. Even OP No.5 has not made any averment in support of the averments of the complainant. The complainant has made out her case by placing reliance on the observations made in the discharge summary only. 43. Even the Histopathological report has not helped the case of the complainant as no negligence has been established. 44. In view of the foregoing discussion, as the complainant has failed to make out any case of medical negligence on the part of OPs, the present complaint is dismissed with no orders as to costs. 45. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 7th December 2011. Sd/- [MADHU MUTNEJA] PRESIDING MEMBER Sd/- [JASWINDER SINGH SIDHU] MEMBER Ad/-
(DISTRICT FORUM-II) C.C.No.62 of 2010 ORDER Present: None. --- The case was reserved on 24.11.2011. As per the detailed order of even date recorded separately, this complaint has been dismissed. Announced. 07.12.2011 [MADHU MUTNEJA] [JASWINDER SINGH SIDHU] PRESIDING MEMBER MEMBER
| | MR. JASWINDER SINGH SIDHU, MEMBER | MRS. MADHU MUTNEJA, PRESIDING MEMBER | , | | 
