Order No. 37 Dt.23.08.2017
This is a case u/s 12 of the Consumer Protection Act, 1986.
The complainant case in a nutshell is that he belongs to a very poor family holding a policy of Mediclaim under under Rastrya Sastha Bima Yojana as a person BPL Category is a youth of 34 years felt severe pain with swelling at his right lower abdomen and he consulted O.P. No.1 Dr. M.M. Kapoor on 03.01.2014. After examining the patient Dr. Kapoor advised the petitioner that the pain was due to one testis lying at the upper right side of lower abdomen and to get relief from the said pain and suffering he was required to be operated of the said testis at the nursing home of O.P. No.1 (O.P. No.2). The doctor also suggested him to collect Rs.17000/- for such operation and cost of the nursing home which was not within the reach of the petitioner and the doctor then came to know from him that the petitioner had a Mediclaim policy and as per terms of the policy if the testis operation was to be shown as Harnia operation then Rs. 7000/- could be realised from the Insurance Company through such Mediclaim Policy and remaining Rs.10000/- to be paid by the petitioner from his own fund.
The petitioner finding no other alternative was compelled to agree with the proposal of doctor, O.P. No.1 and he got admission in the said nursing home. On 03.01.2014 and on that very date the testis was operated and he was discharged from the nursing home on 06/01/2014 and thereafter as an outdoor patient he was medically treated by the O.P. No. 2 subsequently.
In spite of the said operation the petitioner could not get any relief from the pain and suffering of his lower abdomen and the condition became worsen day by day. Due to non-co-operate attitude of O.P. No.1 he had to consult to other doctors and underwent USG on 07/11/2014 after a report of removal of one testis and the petitioner came to know that he had already lost his manhood prominently for removal of such testis and he also came to know that unnecessarily due to negligent act of O.P. No.1 his testis has been removed and he has become perplexed, shocked and dis-balance both mentally and physically and the said removal of testis was done by O.P. No.1 without obtaining the consent of the petitioner before the operation and for such reason he claims total compensation, medical cost, and litigation cost total Rs.1710000/- from the O.P.
The O.P. Nos. 1 and 2 contested the case by filing two separate written version. O.P. No.2 is represented by O.P. No.1 being a person of O.P. No.2, nursing home and denied all the material allegations leveled against them and the specific case of the respondent O.Ps are that the petitioner was suffering from an undescended testis and USG report shown the testis was not functional and was in precarious condition as the nonfunctional testis may cause cancer to any person at any point of time and the petitioner was counseled by O.P. No.1 for operation and removal of undescended testis cause inguinal hernia was also present. Since congenital disease was not covered under RSBI the patient was advised harnio-plasty along with removal of testis to cover up the medical opportunity and subsequently, the biopsy of the said removed testis has shown that the testis was not functioning i.e. it was a testicular atrophy. The entire operation was held with good intention of preventing cancer development and the medical guidelines was strictly followed in the treatment of the patient. Before operation the patient has gone fully of such operation and the patient party duly signed in the consent letter.
Subsequently, the complainant has manufactured the case with ulterior motive and purpose for extortion of money and the case is not at all maintainable.
In this case the complainant Sanjib Kumar Mishra one Dr. R. N. Chowdhury and one Dr. Sanjib Karmakar were examined as P.W.-1 to P.W.3 respectively. The O.P. No.1 Dr. M.M. Kapoor is examined as O.P.W-1 in this case. The necessary documents have been produced in this case by both sides and argument of both sides was heard and written note of arguments was also submitted in this case.
Point for Determination
- Is the complaint u/s 12 of the C.P. Act filed by Sanjib Mishra is maintainable in the eye of law ?
- Has the claimant any cause of action to file the case ?
- Was there any deficiency in service and medical negligence on the part of O.P. Nos. 1 and 2 ?
- Is the complainant entitled to get any relief as prayed for ?
:DECISION WITH REASONS:
All the points are taken up togetherly for discussion for the sake of convenience and brevity.
The admitted position is that the complainant Sanjib Kumar Mishra was suffering with pain and swelling for a long period at his right lower abdomen and to remove this difficulty he consulted Dr. M.M. Kapoor (O.P. No.1). On 03/01.2014 and on that very date without having any test of USG or any other medical and clinical investigation that Dr. Kapoor has advised him to have an operation of right testis of the complainant which appeared to the doctor that the testis was not functional and was in a precarious state as non-functional testis may cause cancer to any person in near future and he felt that urgency was there to remove the said dysfunctional testis immediately as it was in a condition of testicular atrophy. It is also fact that both parties of the case was agreed to mention the said operation in paper as harniopathy instead of testicular operation to get the benefit of RSBY.
Now the point is whether the petitioner was fully counseled before operation of testis as testis is the most vital organ of a male person to maintain his manhood and to give birth of child in future.
The second point is whether the petitioner gave his full consent for such testis operation to the Medical Authority and the next and paramount point of consideration is that whether the patient was actually suffered from any testicular atrophy and he was urgently needed for the said operation to save his life and for permanent relief.
Curiously enough that before holding the disease of testicular atrophy the doctor (O.P. No.1) did not pursue for any clinical investigation to ascertain the right cause of the said disorder of the patient. The O.P. after the operation of testis in his defense mentioned that due to some undescended testis of the petitioner indirect injurial hernia was in existence due to that reasons he was suffering in huge pain and malignancy was expected in near future and for that reason he felt for that immediate removal of such undescended testis of the petitioner which was called testicular atrophy. After operation the said operated undescended testis was sent for histopathology report and the diagnosis was according to the report was testicular atrophy and the diagnosis report of post operated testis suggested the testicular atrophy and the assumption and diagnosis of the doctor in pre-operation stage was subsequently established correct one.
So we may rightly belief that the complainant was suffering according to investigation report in testicular atrophy and according to medical science testicular atrophy cause due to hormonal imbalance and the said hormonal imbalance by far is the most common cause of testicular atrophy. Beside that there are so many causes for developing the disease testicular atrophy. The medical science also suggests that the development of testicular atrophy occurs after hernia repair and surgeon should make careful enquiries as to previous groin or scrotal surgery and when indicated doctor should want the patient before surgery of the increased risk of testicular atrophy.
The papers of this case suggest that neither the doctor has fully counseled the patient for preparation of his mind about the consequences of such testical surgery nor he obtained his physical consent before going into the operation of the said testis. The patient had consulted the doctor on 03/01/2014 and the doctor on that very date operated his testis and in paper the said operation was shown as Harneoplasty in inguinal hernia.
The evidence of P.W.-1 Sanjib Sharma suggests that while P.W.-1 was examined by Dr. Kapoor (O.P. -1) on 03.01.2014 he was suggested that in order to remove the disorder of undescended testis an operation to be done for creation a passage to the scrotum for movement of the testis and he was not advised that in that operation his entire testis would be removed. The documents submitted by O.P. particularly the consent paper shows that one Ranjit Mishra and Biswajit Singh had consented in the operation of the patient. The consent of the patient actually was not obtained in written in this case. On the date of examination and operation i.e. 03/01/2014 the documents and evidences do not suggest that the present Sanjib Misrha was unconscious or his condition was precarious or his state of mind was not enough sufficient to give consent physically for such operation. The O.P. did not go through any clinical investigation to hold the disease as testicular atrophy and only remedy was available by operation and removing the same. The attending doctor (O.P.) knew very well that the patient was only 34 years in age and such type of operation and removal of testis may cause loosing the manhood of the patient permanently and the proper counselling was not done to him for preparation of his mind. The medical science also suggests that if testicular atrophy is suspected in order to confirm the diagnosis the physician will order the following tests:
- Testicular Ultra Sound 2) Blood Test 3) Hormone Assey and there are various forms of treatment available in the medical science in the case of testicular atrophy particularly medicine therapy and other medical facilities are available and operation and removal of the testis is not the first aid solution. Here in this case the doctor gave no space to the patient for thinking twice and without obtaining his consent in the first stroke of treatment that doctor had operated and removed the testis of the complainant which is inhuman, which cause tremendous medical trauma upon the complainant as he has very medical chance to regain his sexual activities and there is every possibility of losing his manhood permanently and certainly it is a case of error of judgment and medical negligence on the part of the Dr. Kapoor. This error of judgment and medical negligence comes within the purview of deficiency of service and the petitioner is well entitled to be compensated for his injuries and sufferings. On the other hand that the doctor being a medical practitioner the society do not expect that the physician intentionally may cause harm to any patient according to his choice and fashion. The amount of compensation claimed in this case apparently are big and fatty one which is irrational and unrealistic.
Considering all aspects the Forum considers that if Rs.125000/- for compensation and for further medical expenses and mental harassment. Another Rs. 10000/- may be awarded.
All the points are hereby settled accordingly.
In the result, the case succeeds.
Proper fee paid.
Hence, ordered
that the Consumer Case No. 81 /2014 be and the same is hereby allowed on contest against O.P. Nos. 1 and 2 with cost
The O.P. Nos. 1 and 2 are jointly and severally liable to pay compensation of Rs. 125000/- and for further medical expenses and harassment Rs. 10000/- thereof to be paid to the petitioner Sanjib Kumar Mishra within one month from the date of order failing which 8% p.a. as interest will be imposed upon the awarded money. The petitioner will be at liberty to put the decree into execution if the order of the Forum is not complied with
Let a copy of order be given to each of the parties free of cost.
