Haryana

Jind

265/12

Smt Sudesh - Complainant(s)

Versus

Dr. Manoj Garg - Opp.Party(s)

Sh. I.S. Sheokand

16 Feb 2015

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JIND.

                                           Complaint No. 265 of 2012

   Date of Institution: 4.9.2012

   Date of final order: 16.2.2015

Smt. Sudesh wd/o Sh. Ashok r/o village Koth Kalan District Hisar d/o Sh. Karan Singh s/o Sh. Chand now resident of village Siwaha Tehsil and District Jind.      

                                                                    ….Complainant.

                                       Versus

1. Dr. Manoj Garg Garg Heart and Child Care Centre, scheme No.5 Gohana road, Jind Tehsil and District Jind.
2. Dr. Neelam Ultrasound and X-ray centre kothi No.44/19 opposite head post office, scheme No.19, Jind, District Jind.
3. United India Insurance Co. Ltd. Jind through its Branch Manager, Jind (insurer of opposite party No.2 vide policy No.040100/46/11/35/00003828 w.e.f. 3.10.2011 to Midnight 2.10.2012).
4. Oriental Insurance Co. Ltd. Jind through its Branch Manager, Jind (insurer of opposite party No.1 vide policy No.261402/48/2012/875 dated 12.9.2011 cover note No.260000776767 dated 9.9.2011).
5.  

                                                                 …..Opposite parties.

                          Complaint under section 12 of

Before:      Sh. Hari Singh Khokhar, President.

                Smt. Bimla Sheokand, Member.

 

   Present: Sh. I.S. Sheokand, Adv. for  complainant.

                Sh. O.P. Bansal, Adv. for  Opposite Party No.1.

                Sh. K.K. Mittal Adv. for opposite party No.2.

                Sh. Vikas Sharma Adv. for opposite party No.3&4.

            

ORDER:

        The brief facts in the complaint are that the complainant was suffering serious pain in her stomach and she was shifted to the

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hospital of opposite party No.1 on 26.5.2012. The opposite party No.1 got admitted the complainant in his hospital as indoor patient after charging admission and consultation fees. Thereafter the complainant was referred to opposite party No.2 for ultrasound regarding opinion of appendix, if any. Ultrasound was conducted by opposite party No.2 and gave report that there was no appendix problem to the complainant but there was no relief in pain of complainant. The opposite party No.1 again referred the complainant for ultrasound on 28.5.2012 to opposite party No.2 and this time the opposite party No.2 reported that the complainant is suffering from appendix.  The complainant remained admitted in the hospital of opposite party No.1 till 28.5.2012 but there was no relief in pain and the opposite party No.1 charged a sum of Rs.9,000/-  to the complainant.  The opposite party No.1 referred to the complainant to the hospital of Maharaja Aggersain, Jind on 29.5.2012 and consulted with Dr. Kanwar Singh Goel. Dr. Kanwar Singh Goel and Dr. Vipul Aggarwal after examination told to the family members of the complainant that the case is very serious because the appendix has been brust inside the stomach and due to poisoning inside the body of the complainant  her life is in danger and advised immediate surgery. Dr. Kanwar Singh operated the complainant on 29.5.2012 and she was remained admitted in the hospital upto 8.6.2012 and spent a sum of Rs.40,000/- for operation and medicines. The complainant visited to the hospital of opposite party No.1 and demanded compensation for giving wrong treatment but the opposite party No.1 did not pay any heed on the request of the

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complainant. The complainant served a legal notice dated 10.7.2012 through her counsel Sh. Surjeet Singh Sheokand Adv. upon the opposite parties but all in vain. Deficiency in service on the part of the opposite parties is alleged. It is prayed that the complaint be accepted and opposite parties be directed to pay a sum of Rs.4,99,000/- as compensation on account of mental pain and agony to the complainant.

2.     Upon notice, the opposite parties have  put in appearance and filed the separate written statement. Opposite party No.1 contended that the complainant was checked and found from suffering fever and diarrhea and abdomen pain and these symptoms as per medical science relates to acute colitis and not of acute appendix. The complainant came with her ultrasound report and ultrasound report  of complainant was showing ‘Mildly Dilated Small Gut Loops’ which report co-related to clinical diagnosis also. The complainant was again referred to radiologist for ultrasound and review examination , the complainant again approached Dr.Neelam for ultrasound abdomen and as per report of ultrasound conducted by Dr. Neelam, evidence of appendicitis was there but no brust appendicitises was in the report, so the complainant was advised for surgeon opinion immediately. The answering opposite party is highly qualified doctor having passed his MBBS, MD (Medicine) and is practicing for the last 13 years.  All the other allegations have been denied by the answering opposite party. Therefore, there is no deficiency in service on the part of the answering opposite party. Dismissal of complaint with costs is prayed.

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3.     Opposite party No.2 has contended that USG examination was conducted to the complainant and there was no appendix problem. It is reiterated here that on radiological examination of the complainant everything was found normal except few mildly dilated gut loops which might have been present due to some intestinal infections.  The USG was conducted again to the complainant and this time it was found that the appendix was inflamed and fluid was seen around the appendix. All the other allegations have been denied by the answering opposite party. Therefore, there is no deficiency in service on the part of the answering opposite party. Dismissal of complaint with costs is prayed.

4.     Opposite party No.3 has contending in the preliminary objections i.e. the complaint is not maintainable in the present forum; the complainant has no cause of action and locus-standi to file the present complaint and the complaint is false and frivolous. On merits, it is contended that the complainant has not put forth any medical expert opinion on record that there was any medical negligence on the part of opposite party No.2. A private complaint does not lie against a medical professional without any credible expert opinion. No medical evidence with the complainant to prove the brust of appendicitises. There is nothing wrong, negligence or carelessness on the part of opposite party No.2, hence the insurer i.e. answering opposite party is not liable to compensate the complainant in any manner.  Dismissal of complaint with special costs is prayed for.

 

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5.     Opposite party No.4 contending in the preliminary objections i.e. the complaint is not maintainable in the present forum; the complainant has no cause of action and locus-standi to file the present complaint and the complaint is false and frivolous. On merits it is contended that due to wrong report of ultrasound and wrong opinion of opposite party No.2 the appendix was burst inside the body of complainant or that her life was in danger. The  opposite party No.1 is highly qualified doctor having passed his MBBS, MD (Medicine) and is practicing for the last many years and he was given proper treatment and timely opinion to the complainant. There is nothing wrong, negligence or carelessness on the part of opposite party No.1, hence the insurer i.e. answering opposite party is not liable to compensate the complainant in any manner.  Dismissal of complaint with special costs is prayed for.

6.     In evidence the complainant has produced the postal receipt Ex. C-1 and C-2, copy of legal notice Ex. C-3, acknowledgment Ex. C-4 and C-5, copies of OPD slips and test reports Ex. C-6 to C-17, affidavit of Samarjeet Singh Ex. C-18, affidavits of Sudesh Ex. C-19 to C-21 and closed the evidence.  On the other hand, the opposite parties have produced the affidavit of  Dr. Neelam Gupta Ex. OP-1, copy of document Ex. OP-2, affidavit of Dr. Manoj Garg Ex. OP-3, copy of policy schedule Ex. OP-4, copies of OPD slip and test reports  Ex. OP-5 to OP-10, affidavit of Mahabir Singh, Sr. Divisional Manager Ex. OP-11, copy of policy schedule Ex. OP-12, affidavit of

 

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Hans Raj Kamboj, Sr. Divisional Manager Ex. OP-13 and copy of letter Ex. OP-14 and closed the evidence.

7.     We have heard the arguments of Ld. Counsel of both the parties and also perused the record placed on file. The complainant felt serious pain in her stomach on 26.5.2012 and she was shifted to the hospital of opposite partyNo.1 by her family members. The opposite partyNo.1 got admitted the complainant in his hospital as indoor patient and on the same day opposite party No.1 referred the complainant to opposite party No.2 for ultrasound regarding opinion of appendix, if any. The opposite party No.2 conducted USG examination and reported that there is no appendix problem to the complainant but there was no relief in pain of complainant. The opposite party No.1 again referred the complainant for ultrasound on 28.5.2012 to opposite party No.2 and this time the opposite party No.2 reported that the complainant is suffering from appendix admission record. Consequently, on 29.5.2012 the opposite party No.1 referred the complainant to the hospital of Maharaja Aggersain, Jind and opposite party No.1 charged Rs.9,000/- up to 29.5.2012 from the complainant. But retain total treatment summary and history of the case with him and only a fresh paper was given at the time of discharge of complainant which shows that the opposite party No.1 and 2 were at fault. Thereafter, the complainant/patient was shifted to Maharaja Aggersain, Jind, where after examination doctor told to the complainant and family members that the case is very serious because the appendix has been brust in side the stomach and due to poisoning

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inside the body of the complainant, her life is in danger and advised immediately surgery of the complainant.  The complainant was operated on 29.5.2012 in Maharaja Aggersain Hospital, Jind and remained admitted up to 8.6.2012 and spent more than a sum of Rs.30,000/- on operation and medicine etc. plus Rs.10,000/-  special diet etc. The complainant visited the hospital of opposite party No.1 and demanded compensation for giving wrong treatment but the opposite party No.1 did not pay any heed on the request of the complainant. The complainant served a legal notice dated 10.7.2012 upon the opposite parties but all in vain. Deficiency in service on the part of the opposite parties is alleged.

8.     On the other hand, the opposite party No.1 has averred that the complainant came to the answering opposite party for her treatment and she was found suffering from fever and diarrhea and abdomen pain and these symptoms as per medical science relates to acute colitis and not of acute appendix. The ultrasound report of complainant was showing ‘Mildly Dilated Small Gut Loops’ which report co-related to clinical diagnosis also. On 27.5.2012 the complainant was again referred to radiologist for ultrasound and review examination. As per report of ultrasound conducted by doctor Neelam, evidence of appendicitis was there, but no brust appendix, so the complainant was advised for surgeon opinion immediately, but the attendants of complainant delayed to shift her in the hospital of surgeon. The answering opposite party is highly qualified doctor having passed his MBBS, MD (Medicine) and is practicing for the last 13 years. All the

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other allegations have been denied by the answering opposite party.  Opposite party No.2 has averred that the answering opposite party conducted USG examination upon the abdomen of the patient/complainant and found normal except few ‘Mildly Dilated Gut Loops’ which might have been present due to some intestinal infections. The condition of patient did not improve and the patient was once again referred to opposite party No.2 for review and fresh USG examination. On 28.5.2012 the answering opposite party once again conducted the USG examination and found that the appendix was inflamed and fluid was seen around the appendix. It is submitted that there are some sonological features of acute appendicitis but there is a high percentage of false negative and false positive results. Therefore, one cannot exclusively depend on USG examination for ruling out the diagnosis of acute appendicitis. It is also submitted that an acutely inflamed appendix might also not be visible on USG examination due to inherent limitations of imaging modality. Therefore, diagnosis of appendicitis is done clinically. The opposite party No.3 has averred that it is not proved that there was any medical negligence on the part of opposite party No.2. The complainant did not produce any medical expert opinion in support of her complaint in evidence. The opposite party No.2 is highly qualified doctor having requisite skill and she exercised the reasonable competence in performing the USG examination upon the abdomen of complainant. If there was any case of compensation, then the complainant was to approach the answering opposite party to lodge her claim within

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prescribed period. But the complainant has not followed the set procedure of the insurance company. The opposite party No.4 has averred that it is not proved that there was any medical negligence on the part of opposite party No.1. The complainant did not submit any medical expert opinion in support of her complaint in evidence. The opposite party No.1 is highly qualified doctor having requisite skill. The complainant cannot blame the doctor merely on the ground that her condition could not improve from the treatment given by opposite party No.2. When the opposite party No.1 advise the complainant for surgeon opinion immediately, then the attendants of complainant delayed to shift her in the hospital of surgeon. The complainant was herself at fault. If there was any case of compensation, then the complainant was to approach the answering opposite party/insurance company to lodge her claim within prescribed period but the complainant has not followed the set procedure of the insurance company.

9.     No doubt the complainant was treated by opposite party No.1  and he also advised the complainant to go for ultrasound but there is absolutely nothing on the file in order to infer any kind of medical negligence on the part of opposite party No.1. In case of medical negligence, the complainant is required to prove the same by producing some report of Medical Board or an expert doctor but as the complainant has not produced any expert evidence in support of her allegation nor has produced any other evidence showing prima-facia negligence of opposite parties in the present case or the defect in the

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ultrasound machine use for conducting the ultrasound, the opposite parties cannot be held guilty of medical negligence. The complainant has not alleged that opposite party No.1 and 2 were not competent.  

10.    From the above facts and circumstances and medical literature on subject, we do not find any cogent and positive evidence and negligence on the part of opposite parties. Therefore, no deficiency in service is established on the part of opposite parties. Hence, the present complaint is dismissed. Parties will bear their own costs.  Copies of order be supplied to the parties under the rule. File be consigned to the record-room.

Announced on: 16.2.2015

 

                                                          President,

          Member                      District Consumer Disputes                                                                  Redressal Forum, Jind