Haryana

Karnal

188/2012

Anil Kumar S/o Sant Parkash - Complainant(s)

Versus

Dr. O.P. Miglani, C/o Miglani Nursing Home - Opp.Party(s)

M.S. Mann

29 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                              Complaint No.188 of 2012

                                                             Date of instt.: 06.04.2012

                                                               Date of decision 29.6.2016

 

1.  Anil Kumar son of Shri Sant Parkash.

2.  Charu minor daughter of Sh. Anil Kumar.

3.  Master Dipanshu Minor son of Anil Kumara

     Minors through their father and natural guardian Sh. Anil Kumar, all residents        

    of House no.81, Shanti Nagar, Gali no.2, Karnal.

                                                                   ……..Complainants.

                                      Vs.

1. O.P. Miglani, c/o Miglani Nursing Home, Kunjpura Road, Karnal.

2. The New India Assurance Co. Ltd. Branch Office G.T.Road, Karnal.

    Insurer of Policy Schedule for professional indemnity insurance (Doctor) vide

    policy no.3536013611040000002 valid from 27.4.2011 to 26.04.2012.

 

                                                                   ………… Opposite Parties.

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

                   Sh.Anil Sharma…….Member.

 

Present:-      Shri M.S. Mann Advocate for complainants.

                    Shri G.P. Singh Advocate for opposite party no.1

                    Shri Gurmeet Singh Advocate for opposite party no.2.

                              

 ORDER:

 

                   This complaint has been filed by the complainants u/s 12 of the Consumer protection Act 1986, on the averments that Smt. Seema (since deceased) the wife of complainant no.1 and mother of complainants no.2 and 3 suffered from pain in abdomen in the month of August, 2011. She was taken to the hospital of opposite party no.1. After conducting certain tests, the opposite party no.1 told that she was suffering from Appendicitis. She was admitted in the hospital on 19.8.2011 and Appendicisectomy was performed upon her on the same day. The said operation for removal of Appendicitis was conducted by opposite party no.1 in a negligent manner and her small intestine was damaged during the operation due to negligence of the opposite party no.1. As a result of damage to small intestine, the faecal matter started leaking out of small intestine and she started suffering from pain and distension in abdomen and was brought to the hospital of the opposite party no.1 on 27.8.2011. Opposite party no.1 conducted an operation to plug the leakage of the intestine. Even, the second operation was conducted in a very casual and negligent manner and the leakage of faecal material could not be plugged and the same continued leaking in the abdominal cavity. She was again taken to the hospital of opposite party no.1, who told that she was suffering from faecal Fistula and will have to undergo one more operation for that problem. She was again operated upon by the opposite party no.1 on 30.9.2011. Opposite party no.1 told that he had reanastomosed the intestine and also performed loop eliastomy and a side bag was attached on the abdomen for collection of faecal material. However, even this third operation could not alleviate the sufferings of the patient and she started having fever and recurring vomiting. She also developed pus in pelvic region. One more operation was performed for drainage of pus from pelvis.  On 22.10.2011 eliastomy was closed. However, patient did not pass stools and opposite party no.1 told that she was suffering from symptoms of intestinal obstructions. Therefore, she was again admitted in hospital on 29.10.2011 with the condition of severe vomiting. Another operation was done by the opposite party no.1 by opening the main wound for clearing the obstruction. However, that operation did not have any salutary effect and the condition of the patient became bad to worst.  Ultimately, the opposite party no.1 referred the patient for treatment at higher medical centre on 2.11.2011. Then, she was taken to Medical Hospital sector 32 Chandigarh for further treatment. She was treated there for 3-4 days, but she expired on 6.11.2011.

                   It has further been pleaded that Seema was suffering from a minor pain in abdomen region and had no other medical problem. She was a young lady, aged 35 years and had healthy and strudy body. The operation for removal of appendicitis was a very minor operation which could not cause any complication whatsoever. However, because of the negligence on the part of the opposite party no.1, the operation was performed in a very casual manner and intestinal injuries were inflicted during the procedure of the operation on account of gross negligence on the part of the opposite party no.1, which resulted into further complications leading to her death.

                   It is further case of the complainants that Seema was doing all the house hold work by herself. Apart from that she was an expert tailor and embroider and used to do the work of stitching and embroidery of ladies clothes and her income was Rs.10,000/- per month from that work. The services rendered by her to the family members were also not less than the value of Rs.5,000/-per month.  On account of her untimely death due to negligence of the opposite party no.1, the complainants have suffered not just loss of love and affection and consortium, but also have suffered loss of earnings and services being rendered by her to the entire family. Amount of Rs.4 lac was spent on her treatment. An amount of Rs.10 lacs has been claimed as compensation for death of Seema apart from Rs.50,000/- on account of mental pain and agony and Rs.5500/- for litigation expenses.

2.                Notice of the complaint was given to the opposite parties. Opposite party no.1 filed written statement controverting the claim of the complainants. Objections have been raised that the complaint is not maintainable and that there was no negligence in the treatment on the part of the opposite party no.1, therefore, complaint merits dismissal.

                   On merits, it has been admitted that Appendicisectomy was performed upon Smt. Seema on 19.8.2011. It has been denied that operation for removing the Appendicitis was performed by the opposite party no.1 in a negligent manner and that small intestine was damaged during the operation due to his negligence. It has been submitted that faecal material started leaking out of small intestine of Smt. Seema, for which she was brought to the hospital of opposite party no.1, where operation to plug the leakage of the intestine was performed. The leakage could not be plugged and another operation for the same was conducted. On examination, the patient was found to be suffering from faecal fistula and an operation for removing the fistula was performed on 30.9.2011. In order to let the fistula dry, loop eliastomy was performed and a side bag was attached to the abdomen for collection of faecal material. In the meantime, the patient developed pus in pelvic region and the same was removed by surgical procedure. On 22.10.2011, eliastomy was closed. However, the patient did not pass on stools and on examination she was found to be suffering from intestinal obstruction. She was re-admitted in the hospital on 29.10.2011 with the condition of severe vomiting. The main wound of the patient was opened for clearing the obstruction. The family members of the complainants wanted to get the patient treated from some higher medical centre, therefore, she was referred accordingly for treatment to other higher medical centre on 2.11.2010. The leakage of the faecal material from the intestine was not because of any negligence on the part of the opposite party no.1. There are several reasons for suffering from such problem by the patient including the enteric fever. Opposite party no.1 gave best possible treatment to the patient and there was no negligence on his part. It has further been denied that deceased was earning of Rs.10,000/- per month or that she was rendering services of Rs.5000/- per month to her family members. The other allegations made in the complaint have also been denied.

3.                Opposite party no.2 filed separate written statement disputing the claim of the complainants. Objections have been raised that complaint is not maintainable; that the complainants are estopped by their own acts and conduct from filing the complaint;  and that the alleged dispute in question involves detailed interpretation of provisions of Consumer Protection Act, medical science, Contract Act and technical discussions, therefore, this forum has got no jurisdiction to try and decide the complaint.

                   On merits, it has been denied that opposite party no.1 was guilty of any negligence. It has been averred that the claim filed by complainant is highly exorbitant and bears no relation to even alleged loss. The other allegations made in the complaint have been denied.

4.                In evidence of the complainant, affidavit of complainant Anil Kumar Ex.C1 and affidavit of Dimple Rani Municipal Councilor Ex.C14, affidavit of Veena Ex.C15 and documents Ex.C2 to C13 have been tendered.

5.                On the other hand, in evidence of the opposite parties, affidavit of Rajeshwar Singh Divisional Manager Ex.OP1, affidavit of Dr. O.P. Miglani Ex.OP3 and copy of insurance policy Ex.OP2 have been tendered.

6.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

7.                The parties are not at dispute regarding performing the operations by opposite party no.1 upon Smt. Seema, as mentioned in the complaint. First operation for removing Appendicitis was performed on 19.8.2011. She was again admitted in the hospital of opposite party no.1 27.8.2011 as she started suffering from pain and distension in abdomen. As faecal material started leaking out of small intestine, operation to plug the leakage of intestine was performed, but intestine could not be plugged and leakage continued in abdomen cavity. She was again brought to the hospital of opposite party no.1 and then opposite party no.1 performed operation on 30.9.2011 for removing the fistula. Loop eliastomy was also performed and side bag was attached on the abdomen of the patient for collection of faecal material. Meanwhile, the patient developed pus in pelvic region, therefore, another operation was performed for drainage of pus from pelvic. On 22.10.2011 eliastomy was closed. The patient did not pass stools and it was found that she was suffering from intestinal obstruction, therefore, she was readmitted in the hospital on 29.10.2011 with the condition of severe vomiting. The main wound was opened for clearing the obstruction. After that she was referred to Higher Medical Centre on 2.11.2011. She was shifted to Medical Hospital, Sector 32 Chandigarh for further treatment, where she expired on 6.11.2011.

 8.                Thus, from the aforesaid facts and circumstances, it is clearly established that after performing Appendicitis operation by opposite party no.1, the patient starting suffering  from pain and distension due to leakage of faecal material from small intestine. As per the allegations of the complainant the leakage of faecal material from small intestine was due to damage to small intestine during operation on account of negligence of opposite party no.1. The opposite party no.1 has asserted that there was no negligence on his part in performing the operation. In para no.6 of the written statement it has been pleaded that the leakage of the faecal material from the intestine was not because of any negligence on his part, there are several reasons for suffering from such problem by the patient including the enteric fever.

9.                The complainants produced the documents Ex.C4 to Ex.C7 regarding tests got conducted by the opposite party no.1 in respect of the health condition of Smt. Seema, before performing operation for Appendicitis on 19.8.2011. None of those tests suggested that the patient was suffering from enteric fever. No document worth the name has been produced by opposite party no.1 on record from which even an inference may be drawn that the patient was suffering from enteric fever before performing operation for Appendicitis on 19.8.2011 or thereafter when the second operation was performed by him for plugging the leakage on 27.8.2011. In the absence of any documentary evidence on record the plea raised by the opposite party no.1 that leakage of faecal material from intestine could be on account of enteric fever cannot be accepted. The self serving affidavit, which does not find support from any quarter, cannot be accepted as gospel truth. Thus, the opposite party no.1 has not been able to establish that the patient was suffering from enteric fever and the leakage of faecal material was the result of such fever.

10.              Learned counsel for the opposite party no.1 put a great thrust upon the contention that no opinion of any expert in Medical Sciences has been produced by the complainants to prove that the small intestine of the patient was damaged during operation of Appendicitis due to negligence of the opposite party no.1. The operation was performed on 19.8.2011 and the patient was brought to the hospital of opposite party no.1 on 27.8.2011 with the problem of pain and distension in the abdomen. On checking it was found that faecal material was leaking out of the small intestine, therefore, operation was performed to plug the same. Such leakage of faecal material from intestine could be due to some other reasons and not on account of negligence on the part of the opposite party no.1. It has further been argued that the complainants have failed to prove that any deficiency in service i.e. negligence in performing operation for Appendicitis by opposite party no.1.

11.              To wriggle out the aforesaid contention, learned counsel for the complainants vehemently argued that patient was having no other problem when she was operated for removal of Appendicitis. After operation faecal material started leaking out the small intestine, due to which she started suffered from pain and distension in abdomen and had to be taken to the hospital of opposite party no.1 on 27.8.2011 and on that day operation to plug the leakage from small intestine had to be performed. As the negligence on the part of opposite party no.1 was quite evident, principle of “res ipsa loquitur” would operate and the complainants were not bound to seek any expert opinion regarding negligence of opposite party no.1. In support of his contention he placed reliance upon V.Kishan Rao Versus Nikhil super Specialty Hospital & Another 2010 (2) RCR (civil) 929, A. Srimannarayana Versus Dasari Santakumari and another 2013 (2) RCR (Civil) 305, Jagmal Singh and others Versus Arpana Research and Charities Trust and others 2012(5)RCR (Civil) 689 and Pavitar Singh & Ors Versus State of Punjab & Ors. 2011(4) CLT 148

12.              In V.Kishan Rao’ case (supra) the Hon’ble Supreme Court held that in a case where negligence is evident, the principle of “res ipsa loquitur” operates and the complainant does not have to prove anything. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. In A. Srimannarayana’s case (supra) also the same principle of law was followed. In Jagmal Singh’s case (supra) the deceased was young lady and died just 1 hour and 15 minutes after the operation of tubectomy. It was held by Hon’ble Punjab & Haryana High Court that the doctrine of “res ipsa loquitur” is squarely attracted to the circumstances of the case. The negligence on the part of the doctor stood proved. In Pavitar Singh’ case (supra) operation for tubectomy was performed on 8.1.1993. The patient stopped passing stools on that day itself. Her condition deteriorated and she started vomiting with effect from 10.1.1993. She got re-admission in the hospital on 12.1.1993 and from there referred to Civil Hospital where she died on 13.1.1993. Under those circumstances, it was held by Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh that the critical condition of patient related back to her operation conducted by respondent no.2 on 8.1.1993 in Civil Hospital. Negligence was clearly proved on the facts of the case.

13.              The proposition of law from the afore discussed authorities emerges that in every case opinion of expert is not necessary to prove medical negligence. In case where negligence is evident, the principle of “res ipsa loquitur” operates and in such a case it is for the concerned doctor to prove that he had taken care and done his duty to repel the charge of negligence.

14.              In the instant case the patient was admitted in the hospital of the opposite party no.1 on 19.8.2011 for removal of Appendicitis. Opposite party no.1 got some tests conducted before performing the operation. None of those tests suggested that she was having problem of leakage of faecal material from small intestine or any other problem. After operation she started suffering from pain and distension in the abdomen and had to be shifted to the hospital of opposite party no.1 on 27.8.2011. Opposite party no.1 found leakage of faecal material from small intestine and for plugging that leakage he performed operation on the same day i.e.27.8.2011, but leakage could not be plugged. Lateron, he performed operation of faecal fistula on 30.9.2011 and thereafter the patient developed pus in the pelvic region and operation for drainage of pus from pelvic had to be performed. On 22.10.2011 eliastomy was closed. The patient did not pass stools and she had to be readmitted in the hospital of opposite party no.1 on 29.10.2011 with the condition of severe vomiting and operation was performed by opposite party no.1 for clearing the obstruction, but the condition of the patient did not improve. On 2.11.2011 the patient was referred by opposite party no.1 to Higher Medical Centre. Then, she was taken to Medical Hospital Sector 32 Chandigarh, where she expired on 6.11.2011. These facts and circumstances clearly establish that the leakage of faecal material from small intestine started after the operation for removal of Appendicitis was performed by opposite party no.1. Therefore, the leakage could be due to damage of small intestine during operation on account of negligence on the part of the opposite party no.1, because no other reason could be appointed out by opposite party no.1 for such leakage. Opposite party no.1 raised the plea that the leakage could be due to entric fever, but he failed to establish that the patient ever suffered with entric fever. Thus, it stands established that the leakage of faecal material from the small intestine was the result of damage to the small intestine during operation for removal of Appendicitis performed by opposite party no.1. Therefore, negligence on the part of the opposite party no.1 while performing the operation is quite evident.

15.              The deceased Seema was a young lady of 35 years of age. Had her small intestine not been damaged due to negligence on the part of the opposite party no.1, she could lead a healthy longer life. Complainant no.1 lost his wife and complainants no.2 and 3 lost their mother due to negligence on the part of the opposite party no.1. Compensation in terms of money cannot fill up the gap of the loss they have suffered. However, grant of compensation would be just a consolation to the complainants, who will have to face the difficulties of life on account of unfortunate and untimely death of the deceased. Complainants have pleaded that an amount of Rs.4 lac was spent on the treatment of the deceased. Though no documentary evidence regarding the expenses incurred on the treatment has been produced, yet the fact remains that lot of amount must have been spent on the treatment of the deceased, in the hospital of the opposite party no.1 as well as during treatment in Medical Hospital Sector 32 Chandigarh. The complainants have further pleaded that the deceased was earning Rs.10,000/- from the work of stitching and embroidery of lady clothes apart from rendering service to the family. No documentary evidence worth the name has been produced by the complainants to prove that the deceased was trained tailor and embroider and that she was having income from such work. However, this aspect cannot be ignored that by caring for her husband and children she must be rendering valuable services to the family. These days even a part time maid does not charge less than Rs.5000/- per month for doing house hold work. The complainants suffered loss of love and affection and apart from that complainant no.1 also suffered loss of consortium. Keeping in view all these facts and circumstances it would be reasonable and justified to award an amount of Rs.8,50,000/- as compensation to the complainants.

16.              As a sequel to the foregoing discussion, we accept the present complaint and direct the opposite parties to pay Rs.8,50,000/- compensation to the complainant on account of loss suffered by the complainant due to negligent act of opposite party no.1. We further direct the opposite parties to pay Rs.5500/- as litigation expenses. The abovesaid amount will be liable to pay by both the opposite parties jointly and severally.  This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 29.06.2016

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member