Haryana

Karnal

CC/435/2020

Sandeep Joshi - Complainant(s)

Versus

Dr. Nitin Bansal C/o Amritdhara My Hospital - Opp.Party(s)

Ms. Suchita

21 Aug 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 435 of 2020

                                                        Date of instt.19.10.2020

                                                        Date of Decision:21.08.2024

 

Sandeep Joshi son of Shri Tilak Raj, resident of Maya Ram Colony, ward no.9, Taraori, District Karnal, Haryana.

                                                                        …….Complainant.

                                              Versus

 

1. Dr. Nitin Bansal c/o Amritdhara my  Hospital, ITI Chowk, Karnal.
2. Amritdhara my Hospital, ITI Chowk, Karnal.
3. The ICICI Lombard General Insurance Company Ltd. ICICI Lombard House, 414, Veer Savarkar Marg, near Siddhivinayak Temple, Prabhadevi, Mumbai-400025.

 

                                                                   …..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

      Ms. Sarvjeet Kaur…..Member

 

 Argued by: Ms. Suchita, counsel for the complainant.

                    Shri Virender Kumar counsel for the OPs no.1 &2.

                    Shri A.K. Vohra, counsel for the OP no.3.

 

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant was a Assistant Professor on Adhoc basis but now he is jobless because of immense pain in the scrotal he is unable to do any job. He was earning Rs.18,700/- and was up bringing his family with said income. On 20.07.2020, complainant had suffered from scrotal pain and he had visited the hospital of OP no.2 and checked by OP no.1. The laboratory tests were got conducted by the OPs. On 21.07.2020, ultrasound was also performed and found Right inguinal hernia reaching up to scrotum. The OP no.1 advised to complainant that a minor operation is to be conducted upon complainant. OP no.1 assured the complainant that after surgery, the problem of scrotal pain would be solved and the complainant would be ok within two three weeks. As per advice of the OP, the complainant undergone the said surgical operation at the hospital on 23.07.2020 and the OPs charged Rs.68555/- for operation and other expenses of Rs.6120/-.  The complainant is insured under Star Health Insurance Company so amount of operation Rs.68555/- paid by insurance company. The complainant remained admitted as indoor patient in the said hospital and discharged on 25.07.2020. On 31.07.2020, complainant visited the hospital of OP no.2 for removal of stitches and dressing. Despite of the aforesaid operation, the complainant did not get any relief from scrotal pain. After the said surgical operation, the complainant was being treated as OPD patient by the OPs but there is no improvement in the health of the complainant. Complainant had visited many times for OPD but every time OP no.1 gives medicines and no satisfactory reply was given. The complainant also visited Park Hospital, Karnal and consulted Dr. Sunil Midha and the doctor told the complainant that the operation was not done properly but denied to give anything in writing.  On 02.09.2020,complainant visited the hospital and again OP no.1 admitted the complainant and performed one another ultrasound on 03.09.2020 and found Mild Right Sided Hydrocele with Internal Septation. OP no.1 did another surgical operation and charged the complainant Rs.15000/- for operation and Rs.500/- for other expenses, this time also amount of operation Rs.15000/- paid by Star Health Insurance under which complainant insured but after two days scrotal pain again started. On 08.09.2020, complainant went for check up in Arvind Hospital and Dr. Vivek Ahuja checked the complainant. Doctor Vivek Ahuja advised the complainant for another ultrasound. The complainant had done ultrasound from Dhawan ultrasound centre. In the report of ultrasound found A Well-defined cystic lesion measuring 4.5x4.4x3.8cms, with volume 37.7 ccis seen in right scrotal sac….? In spermatic cord. Fine Internal echoes & reticulations are seen within lesion. Dr. Vivek Ahuja advised for take medicines otherwise will do another surgical operation. The condition of complainant became bad to worst. The complainant had spent Rs.90175/- on his treatment and even by giving wrong treatment, the health of complainant has been deteriorated and he is entitled to seek compensation to the tune of Rs.5,00,000/- from OPs. The complainant also moved an application before CMO Karnal but to no avail. The complainant’s health has been deteriorated and he is unable to do any work and his income has come to end. The complainant is suffering from immense scrotal pain despite two surgical operations conducted by OPs. The complainant requested the OPs several times to pay the compensation but OPs did not pay any heed to the request of complainant. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OPs no.1 and 2 appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that OP no.1, Dr. Nitin Bansal a qualified (MBBS, DNB-General Surgery, FNB-Minimal Access Surgery) and experienced surgeon and is duly registered with the Haryana Medical Council vide registration no.HN12623. OP no.1 has a clean and spotless professional career/track record and has been keeping himself updated in their professional skills and knowledge through various conferences and programs relating to his field. OP no.2, Amrithdhara my Hospital, Karnal is a 150 bedded, well equipped hospital, duly registered with the State Government of Haryana. OP no.2 is committed to provide its patients with quality healthcare services at competitive prices by a team of qualified and experienced consultants and super specialists. NABH accredited hospital with Super Specialty and affordable medical services in Karnal. It is further pleaded that the complainant (hereinafter called as patient) without any justification has claimed an amount of Rs.5,00,000/- alongwith interest and Rs.22000/- as litigation expenses. More so, there is nothing on record to prove that there is any negligence on the part of the treating doctor. The complainant has totally failed to explain “as to how the OPs no.1 and 2 were negligent,” hence the complaint is based on nonspecific, unscientific and laymen conjectures and is liable to be dismissed. In the preset case, the patient was treated diligently with due care and skill as per the accepted medical standards. There was no complication of the surgery performed on the patient. Thus, there was no negligence or deficiency in service provided by the OP no.1 and OP no.2 to the patient. The present complaint is not supported by any expert medical witness on behalf of complainant. It is further pleaded that complainant has not filed the complete treatment record of the patient pertaining to the treatment/consultation/test result from other hospitals (Park Hospital Karnal and Arvind Hospital). Non- filing of treatment/consultation records, test reports of other hospitals amount concealment of fact and the complainant deserves to be dismissed on this score alone. The patient Sandeep Joshi was admitted in the hospital of OP no.2 on 23.07.2020 with complaints of pain and swelling in the inguinal region for the last 5 to 6 months. He was diagnosed as a case of irreducible large inguinal hernia. After explaining all the complications and taking an informed consent, the surgery of Laparoscopic Mesh Hernioplasty (TAAP) was done on 23.07.2020. The patient recovered well after the surgery and he was discharged on 25.07.2020 in stable condition. The patient again consulted OP no.1 in the OPD with complaint of mild scrotal swelling. He was diagnosed to have Seroma collection in the scrotum. The patient was thoroughly explained by OP no.1 about the seroma, a known sequelae of hernioplasty in cases of large inguinal hernias. Most of the time, it gets resolved by itself. An option of aspiration was given to the patient and after a detailed counseling, the patient opted for aspiration. After taking informed consent, an aspiration was done successfully on 03.09.2020 and the patient was discharged on 04.09.2020 in stable condition. The patient was advised to come for follow up after 3 days, but the patient did not come for follow up. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.3 filed its separate written version raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that the policy is for professional indemnity only as the OP no.1 is covered under the policy where professional services are performed by the insured. OP no.1 is a degree holder of MBBS, DND and Specialization in General Surgeon and he is registered in the year 2012, DMC/R/02332. Thus, complaint is nothing but an afterthought to harass and humiliate the OP no.1 with biased and prejudiced mind. Complainant has not submitted any proof regarding holding post of Assistant Professor on Adhoc Basis and he was drawing salary to the tune of Rs.18,700/- per month. No prior intimation was given to the OP before approaching the OPs no.1 and 2 and even after alleging medical negligence on the part of the OPs with the complainant. Moreover, the law does not require professionals to give guarantee or warranty with respect to the end results of the services rendered by them. There is no complication of the surgery performed on the patient-complainant, thus, there was no alleged negligence or deficiency in service provided by the OP no.1 to the complainant in any manner. The complainant has not submitted the medical record of park hospital, so it cannot be said that the OP no.1 has not given proper treatment to the complainant. The complainant has failed to prove the negligence or deficiency in the treatment of complainant thus he is not entitled to any compensation. It is further pleaded that complaint to the C.M.O. Karnal is a separate complaint which is to be decided by the other authorities and must not be considered to the part of the complaint. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.        

4.             Parties then led their respective evidence.

5.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.C1/A, copy of hospital receipt dated 20.07.2020 Ex.C1 and Ex.C2, copy of ultrasound Scrotum Ex.C3, copy of bill dated 20.7.2020 Ex.C4, discharge summary Ex.C5, copy of invoice dated 25.07.2020 Ex.C6, copy of bill dated 25.07.2020 Ex.C7, copy of discharge summary dated 23.07.2020 Ex.C8, copies of invoices, bills receipt, OPD slips Ex.C9 to Ex.C14, copy of Park Hospital Pharmacy slip Ex.C15, copies of bills receipt and doctor slips Ex.C16 to Ex.C19, copy of ultrasound Scrotum dated 03.09.2020 Ex.C20, copy of discharge summary dated 03.09.2020 Ex.C21, copy of invoice dated 04.09.2020 Ex.C22, copy of star insurance dated 25.07.2020 Ex.C23, copy of star insurance bills Ex.C24 and Ex.C25, copy of OPD slip of Arvind Hospital dated 08.09.2020 Ex.C26, copy of ultrasound report of Dhawan Ultrasound Centre Ex.C27, copies of medicines bills Ex.C28 to Ex.C30 and Ex.C32, copy of Dhawan Ultrasound Report Ex.C31, copy of admission and discharge slip dated 23.07.2020 Ex.C33 to Ex.C35, copy of consent sheet dated 23.07.2020 Ex.C36, copy of surgical safety checklist Ex.C37, copy of Anesthesia record Ex.C38, copy of physical examination dated 23.07.2020 Ex.C39, copy of pre-anesthesia evaluation Ex.C40, copy of consent of anesthesia Ex.C41, copy of pre-operative check list dated 23.07.2022 Ex.C42, copies of nurse notes dated 23.07.2020 Ex.C43, Ex.C44 and Ex.C47, copy of clinical hands off sheet dated 23.07.2020 and 24.07.2020 Ex.C45 and Ex.C46 and closed the evidence on 06.09.2022 by suffering separate statement.

6.             On the other hand, learned counsel for the OPs no.1 and 2 has tendered into evidence affidavit of Dr. Nitin Bansal Ex.OP1/A, affidavit of Dr. Dhruv Gupta Ex.OP2/A, copy of Certificate of Registration Ex.OP1/B, copy of Degree of Bachelor of Medicines and Bachelor of surgery Ex.OP1/C, copy of Provisional Certificate of Passing Diplomate of National Board Ex.OP1/D, copy of Diplomate of National Baoard for the practice of General Surgery Ex.OP1/E, copy of policy letter of Professional Indemnity for doctor and medical practitioners Ex.OP1/F, copy of insurance policy Ex.OP1/G, copy of admission and discharge record Ex.OP1/H, copy of physical examination Ex.OP1/I, copy of medication chart Ex.OP1/J. copy of progress sheet Ex.OP1/K, copy of medication chart Ex.OP1/L, copy of consent form Ex.OP1/M, copy of informed consent for surgery Ex.OP1/N, copy of consent sheet Ex.OP1/O, copy of medical literature Ex.OP1/P and closed the evidence on 05.10.2023 by suffering separate statement.

7.             Learned counsel for the OP no.3 has tendered into evidence affidavit of Divyam Suri Ex.OP3/A, copy of policy letter of copy of Professional Indemnity for doctor and medical practitioners Ex.OP3/1 and closed the evidence on 11.08.2023 by suffering separate statement.

8.              We have heard the learned counsel for the parties and perused the case file carefully and also gone through the evidence led by the parties.

9.             Learned counsel for the complainant, while reiterating the contents of complaint, has vehemently argued that on 21.07.2020, complainant had suffered from scrotal pain and visited to the hospital of OP no.2. The ultrasound was performed and found Right inguinal hernia reaching up to scrotum. A surgery was conducted by the OP no.1 and the OPs had charged Rs.68555/- for operation and other expenses of Rs.6120/-.  The amount of Rs.68555/- paid by insurance company. But despite of the aforesaid operation, the complainant did not get any relief from scrotal pain. Complainant had visited many times for OPD but every time OP no.1 gives medicines but complainant did not get any relief. The complainant also visited Park Hospital, Karnal and consulted Dr. Sunil Midha and the doctor told the complainant that the operation was not done properly. On 08.09.2020, complainant went for check up in Arvind Hospital and Dr. Vivek Ahuja checked the complainant and advised for another ultrasound. After the report of ultrasound, Dr. Vivek Ahuja advised for take medicines otherwise will do another surgical operation. The condition of complainant became bad to worst. The complainant had spent Rs.90175/- on his treatment and even by giving wrong treatment, the health of complainant has been deteriorated and he is unable to do any work due to the negligent act of the OPs and his income has come to end and lastly prayed for allowing the complaint.

10.           Per contra, learned counsel for the OPs no.1 and 2, while reiterating the contents of written version, has vehemently argued that there is nothing on record to prove that there is any negligence on the part of the treating doctor. The complainant has totally failed to explain as to how the OPs were negligent. The complainant  was treated diligently with due care and skill as per the accepted medical standards. There was no complication of the surgery performed on the patient. The complainant has not placed on file the treatment record of the others hospitals i.e. Park Hospital Karnal and Arvind Hospital. There is nothing on record to prove that there is any medical negligence on the part of the OPs and prayed for dismissal of the complaint. Learned counsel for the OPs relied upon the case law titled as Jacob Mathew Vs. State of Punjab (2005) 6 SCC I and Dr. Harkanwaljit Singh Saini Vs. Gurbax Singh and Anr. 2003 (1) CPJ 153 (NC)

11.           Learned counsel for the OP no.3, while reiterating the contents of written version and argued the same line as argued by the learned counsel for OPs no.1 and 2 and prayed for dismissal of the complaint.   

12.           We have duly considered the rival contentions of the parties.

13.           The complainant has alleged that there was medical negligence on the part of the OPs while conducting the surgeries. The onus to prove the medical negligence while conducting the surgeries by the OPs was relied upon the complainant but complainant has miserably failed to prove his case by leading any cogent and convincing evidence. There is nothing on the file to prove that the OPs were negligent while conducting the surgery upon the complainant. Complainant has alleged that Dr. Sunil Midha of Park Hospital, Karnal and Dr. Vivek Ahuja of Arvind Hospital, Karnal had opined that there was medical negligence while conducting the surgeries upon the complainant but complainant has neither placed on file alleged opinion given by said doctors nor their affidavit have been placed on file. The complainant has not produced any documentary evidence from which it can be ascertain that OPs were negligent while conducting the surgery upon the complainant.

 14.           Furthermore, the complainant neither placed on file any expert opinion nor made any prayer for constitution of the Board of Doctors to opine whether the OPs were negligent or not. The experts could have proved, if any, of the doctors in the Hospital providing treatment to the patient were deficient or negligent in service. The complainant has not produced any such evidence from which it can be proved that OPs were negligence in conducting the surgeries. The doctors are expected to take reasonable care but none of the professionals can assure that the patient would overcome the surgical procedures.  In this regard, we placed reliance on the judgment case titled as C.P. Sreekumar (Dr.), Ms (Ortho) Versus S. Ramanujam, decided on 01.05.2009 wherein Honb’ble Supreme Court of India has held that 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.”  We place reliance on the judgment titled as Martin F. D'Souza v. Mohd. Ishfaq, decided on 17.02.2009 wherein the Hon’ble Supreme Court of India has held as under:-

“40.Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse.

xxx xxx xxx

42. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalised for losing a case provided he appeared in it and made his submissions.”

Furthermore, negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. However, while adopting a course of treatment, the medical professional must ensure that it is not unreasonable. The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals function. Further in Jacob Mathew v. State of Punjab and Anr.the Hon’ble Supreme Court of India has held that decided on 05.08.2005 the simple lack of care, an error of judgment or an accident, is not a proof of negligence on the part of a medical professional. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alter- native course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, especially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of

15.           In another judgment titled as Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others decided on 30.08.2000, wherein Hon’ble Supreme Court held that a complaint was filed attributing medical negligence to a doctor who performed the surgery but while performing surgery, the tumour was found to be malignant. The patient died later on after prolonged treatment in different hospitals. The Hon’ble Supreme Court of India has held that Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking risks. Every advancement in technique is also attended by risks. It is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that the respondent charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used. Further, in case titled as Dr. Harish Kumar Khurana v. Joginder Singh & Others, decided on 07.07.2021 Hon’ble Supreme Court of India has held that hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in an unfortunate case, death may occur. It is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at the conclusion that death is due to medical negligence. Every death of a patient cannot on the face of it be considered to be medical negligence.

16.            In Aparna Pandey & Anr. Versus Indraprastha Apollo Hospitals Delhi in CC no.161 of 2008,  wherein Hon’ble National Commission held that “Negligence-A professional may be held liable for negligence on one or two findings; either they did not possess the requisite skills that they claimed to have, or they did not exercise, with reasonable competence in the given case, the skill which they did possess.

Proof of medical negligence-OP no.2 performed liver transplantation- alleged that during the surgery, patient suffered significant blood loss, metabolic acidosis and was kept in ICU-patient became critical, other team of doctors hurriedly performed second surgery-despite 2^nd operation, bleeding continued-Renal haemodialysis performed-patient died allegedly due to fungal infection-gangrene-apparent that the patient was treated by a multi-disciplinary team of doctors-patient developed necrosis/gangrene and septicaema which could not be attributed to negligence- expert report of the medical Board mentioned that Apollo Hospital and others were not negligent in treatment-complainant failed to conclusively establish deficiency in service and medical negligence on the treating doctor and the hospital-complaint dismissed”.

17.           Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint, we are of the considered view that complainant has miserably failed to prove the medical negligence on the part of the OPs while performing the surgery.

18.           Thus, in view of the above discussion, the present complaint is devoid of any merit and deserves to be dismissed and same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:21.08.2024    

                                                             President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.      

 

          (Sarvjeet Kaur)    

                     Member