STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Appeal No.70 of 2010)

                                                                   Date of Institution:15.02.2010

                                                                   Date of Decision  :18.11.2010

1.                  Mehar Singh son of Sant Lal

2.                  Rajan Kumar

3.                  Kuldip Singh;

4.                  Sandeep Kumar sons of Shri Mehar Singh;

5.                  Kiran Bala;

6.                  Vandhana Rani both daughters of Sh.Mehar Singh

All residents of House No.2540/8, Sheela Nagar Amin Road, Kurukshetra.

……Appellants/Complainants.

V e r s u s

 1.            Dr.Pawan Goyal, Pawan Hospital Stone Clinic Surgical Hospital, Near Neelam Cinema, Kurukshetra.

  2.            Dr.Virendera Dhankar;

  3.            Dr.Manoj Sharma

  4.            Dr.Rajesh Gulia all from Hospital of Kidney Centre, SCO 332-334, Sector 34-A, Chandigarh;

  5.       United India Insurance Co. Ltd., Railway Road, Kurukshetra through its Branch Manager; (Insurer of OP No.1).

  6.       Apex Insurance Consultant Ltd., 54, Vinoba Puri Lajpat Nagar-II, New Delhi-110024, India (being agent of OP No.5, insurer for OPs No.2 and 3.

7.       The New India Assurance Co. Ltd., SCO No.463-464, Sector 35-C, Second Floor, Chandigarh-160022.

              ....Respondents/OPs.

BEFORE:            MRS. NEENA SANDHU, MEMBER

                        S. JAGROOP SINGH MAHAL, MEMBER.

Argued by:          Sh. G. C. Shahpuri, Advocate for the appellants.

                        None for respondents No.1 and 6.

                        Sh. Rakesh Gupta, Advocate for respondents No.2, 3 and 4.

                        Sh. Nitin Gupta, Advocate for respondent No.5.

                        Respondent No.7 exparte.

PER JAGROOP SINGH MAHAL, MEMBER.

1.                     This is complainant’s appeal under section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the C. P. Act) against the order dated 23.12.2009, passed by the learned District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter referred to as District Forum), vide which the complaint was dismissed finding no medical negligence or deficiency in service on the part of OPs.

2.                     Briefly stated the case of the complainants is that the wife of complainant No.1 namely Smt. Ram Kali was having pain in her left kidney for which she visited Dr. Nagpal (Proprietor of Nagpal Nursing Home) at Kurukshetra and on his advice, I.V.P. Test was conducted upon Smt. Ram Kali from Dr. P. P. Taneja on 29.09.05 and as per his report (Annexure C-1), there was staghorn calculus in left renal area. It is averred that thereafter, the complainants visited the clinic of Dr. Pawan Goyal (OP No.1), who after going through the test reports and conducting other clinical examinations, administered one injection to Smt. Ram Kali and charged a sum of Rs.500/- and the patient was referred to Kidney Centre, Sector 34A, Chandigarh by him for further management by giving a reference chit to the complainants. After seeing the entire test reports and the record of the patient, the doctors present at Kidney Centre at Chandigarh advised for removal of stone by PCNL technique as there was no complications in the said technique, which is less morbid as compared to open surgery. The patient was got admitted in Sector 34 Kidney Centre on 08.11.2005 and she was operated upon by OPs No.2 to 4 on 09.11.2005. It was alleged that during operation, Dr. Gurpreet Bhatia from Mukat Hospital was called by OPs No.2 to 4 and the patient was shifted to Mukat Hospital in ICU ward. It was alleged that the persons accompanying the patient were not told about the complications, which arose during the operation and no consent for shifting her to the said hospital was ever taken. Ultimately, on 10.11.2005, the wife of complainant No.1 was declared dead. As per the complainants, the death occurred due to the negligence on the part of OPs No.2 to 4 who conducted the operation negligently and without observing care as required for conducting of such operations, which was very much clear from the cause of death in the death report as “Septiciemia Shock”.  It was further averred that for such like operations where the size of the stone was large PCNL, open operation for removal of the stone was needed to be done whereas the OPs No.2 to 4 adopted wrong line of treatment in operating the patient. As per the complainants, they spent an amount of Rs.75,000/- on the treatment of the patient.  Alleging medical negligence in treating the patient resulting into her death, the complainants filed the complaint seeking directions to the OPs to pay a compensation of Rs.20 Lacs for the loss of life partner of complainant No.1 and precious mother of the remaining complainants.

3.                     OP No.1 in its reply pleaded that on 07.11.05, Smt. Ram Kali visited the hospital and was treated as outdoor patient. It is further stated that after complete checkup, the attendants of the patient were advised to give her institutional treatment at good hospital at Chandigarh or Delhi. As per this OP, neither any treatment was given to the patient nor any medicines were prescribed. It was pleaded that neither the patient was ever referred to the Kidney Centre, Sector 34-A, Chandigarh nor the PCNL surgery was ever suggested by him. The averment of giving any reference chit to the complainants was also denied by OP No.1. Pleading no deficiency in service on his part, OP No.1 prayed for dismissal of the complaint with costs.

4.                     OPs No.2 to 4 in their joint reply pleaded that Smt. Ram Kali was treated in Kidney Centre on 08.11.2005 after having been diagnosed as case of staghorn calculus left kidney. As per these OPs, all the necessary investigation/tests were carried out for diagnosing of the disease and removal of stone by PCNL Technique was felt necessary for the proper treatment of the patient. It was stated that all the complications were explained to the attendants of Smt. Ram Kali before removal of stone through PCNL.  It was next submitted that the patient was admitted on 08.11.05 and all preoperative tests were conducted upon her, which were found normal. She was administered intravenous antibiotic on 08.11.05 and 09.01.05 and was operated on 09.11.05 at 3.40 P.M but during operation at 7.00 p.m., the patient developed cardio respiratory arrest. She was then intubated and cardiopulmonary resuscitation was done and the patient was revived. According to OPs, keeping in view the cardiac arrest, they called Dr. Bhatia from Mukat Heart Hospital, Sector 34-A to assess the condition of the patient, who advised the patient to be shifted to Mukat Hospital, which was done under the supervision of cardiac experts.  As per OPs, the patient again suffered cardiac arrest in Mukut Hospital on 10.11.05 at 9.45 a.m. and ultimately she died at 10.20 a.m.  It was pleaded that according to the treating doctor of Mukut Hospital, the cause of death of the patient  was “septicemic shock”. According to these OPs, the PCNL operation was very much successful and the same could in no way be termed as the cause of death of the patient.  It was asserted that the post mortem was not conducted due to refusal by the attendants to do the same. Under these circumstances, pleading no deficiency in service or negligence on the part of treating doctors, these OPs prayed for dismissal of the complaint.

5.                     OP No.5 – Insurance Company in its reply pleaded that Dr. Pawan Goyal (OP No.1) is insured under the insurance policy for the period from 23.01.05 to 22.01.06 subject to terms and conditions of the policy.  It was pleaded that no notice as required under the terms and conditions of the insurance policy had been given by OP No.1 and therefore, the Insurance Company cannot be made liable to indemnify OP No.1. As per this OP, in any case, the liability of indemnification shall not be more than the limits as covered under the policy of insurance. Pleading no deficiency in service on its part, this OP also prayed for dismissal of the complaint.

6.                     OP No.6 filed a short reply and pleaded that it being an insurance Company had no role in the treatment of the patient. Denying all the allegations made in the complaint and pleading no deficiency in service on its part, it also prayed for dismissal of the complaint.

7.                     OP No.7 in its reply pleaded that Dr. Rajesh Gulia (OP No.4) is insured for the period from 03.04.05 to 02.04.06 subject to the terms and conditions of the policy. It was submitted that as per condition No.7 of the insurance policy, no liability could be fastened against the Company as OP No.4 had failed to inform OP No.7 regarding the claim in writing. Pleading no deficiency in service on its part, this OP also prayed for dismissal of the complaint.

8.                     The parties were given opportunity to lead evidence in support of their contentions.

9.                     After hearing the learned counsel for the parties and perusing the record, the learned District Forum dismissed the complaint vide impugned order dated 23.12.2009 as mentioned in Para No.1 of the order above, which has been challenged by the complainants through this appeal.

10.                   We have heard the arguments of learned counsel for the parties and have perused the record.

11.                   The contention of learned counsel for the complainant/appellant is that, the death took place due to Septicaemic Shock as mentioned in the Death Summary dated 10.11.2005 annexed with the reply of OP No.1, which resulted in cardiac arrest. The learned counsel referred to Harrison’s Principles of Internal Medicine and argued that  Septicemia is in fact an infection of blood because blood poisoning is caused by bacteria or toxin. His contention is that the infection occurred after the operation in the hospital of the OP and therefore, they were negligent in this respect. We do not find any merit in this argument. It is a fact that before conducting the operation, different tests were conducted to ascertain that Smt. Ram Kali was in a fit condition to undergo the operation. All the tests were normal as mentioned in Para No.4 and 8 of the complaint, upon which the operation was conducted. There is no denying the fact that the patient suffered cardiac arrest upon which, Dr. Bhatia was called from Mukut Hospital, Chandigarh. There is no delay on the part of OPs in calling a specialist when they felt that there was some problem of cardiac arrest with the patient. Dr. Bhatia advised the OPs to shift the patient to Mukut Hospital and she was promptly shifted under proper care. There was, therefore, no laxity or negligence on the part of OPs in conducting the operation or in shifting the patient and putting her under proper medical care. The mere fact that things went wrong and she could not survive cannot be a ground to hold that there was negligence on the part of OPs.

12.                   In order to find out the real cause of death, it was necessary for the complainants to have got the Postmortem examination conducted. However, no Postmortem examination was conducted to ascertain the cause of death because the complainants on 10.11.2005 moved an application before the authorities that they were not willing to subject the deceased to Postmortem examination.

13.                   It is also argued by the learned counsel for the complainant/appellant that keeping in view the size of the stone, it was necessary to conduct open surgery and the stone should not have been removed by PCNL. It is argued that it was negligence on the part of OPs. In this respect also, there is no evidence produced by the complainants as to what was the size of the stone. They have not produced any evidence to suggest that PCNL should not have been conducted by the OPs in view of the size of the stone. There is no such evidence if open surgery was more appropriate in this case in place of PCNL. The opinion of the complainants in this respect cannot be preferred to the opinion of the treating doctors who considered that PCNL was a better choice. The complainants have not produced any evidence if the OPs were not competent to conduct the operation or the method adopted by them was not acceptable in the medical science or the condition of the patient was such that the said method of operation was not favourable to her. The mere fact that the death of the patient has taken place alone cannot be held sufficient to presume negligence on the part of the doctors.

14.                   The learned District Forum has examined the law and facts exhaustively and have came to the right conclusion that there was no negligence on the part of OPs No.2 to 4. We are in full conformity with the findings recorded by the learned District Forum.

15.                   There is no evidence produced by the complainant to prove, if there was any negligence on the part of OPs in conducting the operation.

16.                   In view of the above discussion, we are of the opinion that there is no merit in this appeal and the same is accordingly dismissed with costs of Rs.5,000/-.

17.                   Copies of this order be sent to the parties free of charge.

Pronounced.

18^th November 2010.

Sd/-

 [NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Ad/-

STATE COMMISSION

(Appeal No.70 of 2010)

Argued by:          Sh. G. C. Shahpuri, Advocate for the appellants.

                        None for respondents No.1 and 6.

                        Sh. Rakesh Gupta, Advocate for respondents No.2, 3 and 4.

                        Sh. Nitin Gupta, Advocate for respondent No.5.

                        Respondent No.7 exparte.

Dated the 18^th day of November, 2010.

ORDER

                        Vide our detailed order of even date recorded separately, this appeal has been dismissed with costs of Rs.5,000/-.

(JAGROOP SINGH MAHAL)                                                         (NEENA SAHDHU)

                MEMBER                                                                     MEMBER