Delhi

North East

CC/29/2017

MOHD. SAMEER - Complainant(s)

Versus

DR. RAJNISH SHARMA (SURGEON) - Opp.Party(s)

14 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 29/17

 

 

 

In the matter of:

 

	Mohd. Sameer S/o Sh. Mohd. Jamil R/o H. No. 56-A, Giri Market, Loni Road, Ghaziabad (U.P), NCR.	Complainant
	Versus
1.       2.	Dr. Rajinish Sharma(Surgeon) K.K. Surgical & Maternity Hospital B-37, East Jyoti Nagar, Loni Road, Delhi-110093   Management, K.K. Surgical & Maternity Hospital B-37, East jyoti Nagar, Loni Road, Delhi-110093	Opposite Parties

 

 

DATE OF INSTITUTION:        JUDGMENT RESERVED ON:                           DATE OF ORDER:

21.01.17 18.11.22 14.03.23

 

CORAM:

Surinder Kumar Sharma, President

Anil Kumar Bamba, Member

 

ORDER

Surinder Kumar Sharma, President

The Complainant has filed the present complaint under Section 12 of the Consumer protection Act, 1986 against Opposite Party No.1 i.e. Dr. Rajnish Sharma, the surgeon and the proprietor of K.K. Surgical & Maternity Hospital i.e. Opposite Party No.2.

Case of the Complainant

1. The case of the Complainant as revealed from the record is that the Complainant was diagnosed Ureteric Calculus of right side kidney after KUB and X-ray on 10.04.16 and after various tests, the complainant was advised for open Ureter Lithotomy Surgery in GTB hospital but due to non-availability of surgeon in GTB hospital, the Complainant decided to get treatment at Opposite Party hospital. The complainant further stated that the Opposite Party asked Rs. 32,000/- from Complainant and on 11.07.16 the surgery was performed. Allegedly, instead of Ureter Lithotomy Surgery, the Opposite Party No.1 had implanted RT DJ stenting and informed the complainant that it was a guaranteed method of stone removal. The Complainant was discharged on 13.07.16 and asked for second observation on 12.08.16. On 12.08.16, when the Complainant visited Opposite Party hospital, after examination and second KUB X ray Complainant was asked to deposit Rs. 3,500/- and he was admitted again. The Opposite Party performed second surgical process and discharged Complainant on next day. The opposite party informed the complainant that since the stone was little bigger so the second operation was necessary. The Complainant was asked to revisit on 23.08.16. On 23.08.16, when the Complainant visited the hospital Opposite Party No.1 removed all the stents implanted and asked him to revisit on 15.09.16. Accordingly, on 15.09.16, the Complainant revisited hospital and reported to the opposite party that he did not feel any relief even after second operation. The complainant was told by the Opposite Party No. 1 that it will take time. The Complainant further submitted that as he did not find any relief, he consulted another doctor and ultra sound and KUB X ray were conducted again. After comparing the new tests with the old reports, the Complainant was informed that stones have not been removed and it has been enlarged and grown in size.  When the Complainant again visited the Opposite Party No.1, he was told that his operation was a successful operation and the opposite party 1 had removed the existing stone completely. The complainant was further told that he was already warned of re occurrence of stone and this stone of 17.5 mm has re occurred in the span of just four months. The Complainant was asked to deposit Rs. 40,000/- again so that second operation of lithotomy RT can be done. The Complainant stated that he had borrowed money for his first operation and he had no more recourses left for their demand and he is suffering from severe pain due to his health conditions. Hence this shows deficiency on the part of Opposite Party. Complainant has prayed for compensation of Rs. 2,00,000/- for non-performance of appropriate surgery and Rs. 2,00,000/- for mental harassment. He has also prayed for Rs. 25,000/- as litigation charges.

 

 

Case of the Opposite Parties

2. The Opposite Parties contested the case and filed written statement. The Opposite Parties, while taking preliminary objections, submitted that the present complaint is liable to be dismissed because the Complainant has no grievances on account of medical negligence or fault by the Opposite Parties.  The complaint has been filed to extort money from the Opposite Parties. On merits, it has been contended by the Opposite parties as follows:

1. On 11.07.2016, the Complainant patient was admitted with diagnosis of RT. Ureteric Calculus and was taken up for RT. URS with DJ stenting. Only DJ stenting was done.
2. On 11.08.2016, the Complainant was readmitted and RT. URS with lithotripsy of stone was done and the Complainant was satisfactorily and successfully discharged on 12.08.2016.
3. On 03.09.2016, X-ray KUB was done which showed No evidence of stone, DJ stent seen in SITU. The Complainant was called after 7 days i.e. on 10.9.2016.
4. Thereafter, on 15.09.2016, the DJ stent was removed in OPD and the Complainant was sent home with no complaint from the side of Complainant or his relatives against the Opposite parties about medical negligence.
5. The Opposite Party No.1 has conducted his duties/services with all care and precautions, hence, has no liability jointly or severally towards the Complainant.

Rejoinder to the written statement of Opposite Parties

3. The Complainant filed the rejoinder to the written statement of Opposite Parties wherein the Complainant has denied the pleas raised by the Opposite Parties and has reiterated the assertions made in the complaint. The Complainant has vehemently denied that any x-ray was taken on 03.09.2016 as has been placed on record by the Opposite Parties. The Complainant has alleged that the said document is fake and has been filed to mislead this forum.

Evidence of the Complainant

4. The Complainant in support of his complaint filed his evidence by way of affidavit wherein he has supported the averments made in the complaint.

Evidence of the Opposite Parties

5. In order to prove their case, Opposite Parties has filed affidavit of Shri Dr. Rajnish Sharma, At:-B-37, East Jyoti Nagar, Loni Road, Shahdara, Delhi-110093 on behalf of both the opposite parties wherein the averments made in the written statement of Opposite Party have been supported.

 

 

Arguments & Conclusion

6. We have heard the Ld. Counsel for the Complainant and Opposite Party in person. We have also perused the file and the written arguments filed by Parties.
7. The case of the Complainant is that Complainant was diagnosed Ureteric Calculus of right side kidney and surgery was performed by the Opposite Party No. 1. Allegedly, instead of Ureter Lithotomy Surgery, the Opposite Party No.1 had implanted RT DJ stenting and informed the Complainant that it was a guaranteed method of stone removal. It is also alleged that the Opposite Party performed second surgical process and informed the Complainant that since the stone was little bigger so the second operation was necessary. It was also alleged that the Complainant did not feel any relief even after second operation and suffered. Therefore, the Complainant consulted another doctor and ultra sound and KUB X-ray were conducted again. After comparing the new tests with the old reports, the Complainant was informed that stones have not been removed and it has been enlarged and grown in size.  The Complainant was allegedly told by the Opposite Party that his operation was a successful operation and the Opposite Party had removed the existing stone completely and the stone of 17.5 mm has re occurred in the span of just four months. The Complainant is suffering from severe pain due to his health conditions. The non-performance of appropriate surgery by the Opposite Party shows deficiency on their part.  The Opposite Party allegedly asked the complainant to deposit Rs. 40,000/- again for second operation of lithotomy RT.
8. The case of the Opposite Parties hospital is that the surgery of the Complainant was satisfactorily performed and he was successfully discharged on 12.08.2016. It is contended that on 03.09.2016, X-ray KUB was done which showed no evidence of stone, DJ stent seen in SITU. Thereafter, on 15.09.2016, the DJ stent was removed in OPD and the Complainant was sent home with no complaint from the side of Complainant or his relatives against the Opposite Parties about medical negligence. It is submitted by the Opposite Parties that they have conducted their duties/services with all care and precautions, hence, have no liability jointly or severally towards the Complainant.
9. It is to be noted that our predecessors had sent the complete record of the medical of treatment of the Complainant by the Opposite Party hospital to the Medical Superintendent, Lok Nayak hospital, New Delhi directing the said hospital to provide expert medical opinion. Consequently, the Medical expert opinion report dated 01.07.2019 was received. The parties were provided copy of medical opinion and none of the parties had preferred to file any objections.
10. While perusing the expert opinion, we observed that the committee was of the view that the endoscopic procedure is as good as an open procedure. The committee has also given its opinion specifically that it is a standard procedure for high grade obstruction which has been adopted by the Opposite Party. Relying on the observation made by the committee on the issue, we are of the view that the Complainant’s contention regarding the aptness of procedure cannot be accepted.
11. We further observed that the committee had expressed its concern regarding “not finding OT notes describing the operative findings” and our predecessors vide order dated 27.01.2020 directed the Opposite Parties to file complete details of OT procedure done by them on the Complainant in view of the observation made by the medical board. We observed that the Opposite Parties filed the certain documents in compliance of the above order after unreasonably long gap of more 2.5 years.  Moreover, those documents cannot be relied upon since they have not been proved by the Opposite Parties.
12. The Opposite Parties have contended that the surgery was done satisfactorily and filed an X-ray report dated 03.09.2016 in support of their contention which showed no evidence of stone, DJ stent seen in SITU. The Complainant has alleged that the said document has been faked by the Opposite Party. It is noticed that the said contention has not been rebutted by the Opposite Party. The perusal of the case file also reveals that neither the Opposite Party has filed any evidence corroborating that report such as accompanying X-ray film nor any affidavit of the concerned doctor issuing the said report testifying the document. The expert committee has also remarked on the said document that the said document has been contested by the Complainant and the Opposite Party has not corroborated the said document. In view of the above facts and discussion, we are of the view that the said report dated 03.09.2016 cannot be accepted as the document is not proved.
13. The Complainant has contended that the said stone was not removed because the new reports of ultra sound showed that the stone of 17.2 mm in the same region while the Opposite Party says in rebuttal that the stone of 17.2 mm has re-occurred because the surgery was done by them satisfactorily and the stone was removed. On perusal of record, it is revealed that the stone removal was done on 12.08.2016 and the ultra sound report dated 30.11.2016 shows the “Calculus measuring about 17.2mm is seen at right UV junction”. It shows that the last test was conducted just after 3.5 months from the date of surgery which reports the stone of bigger size grown in the same region. The Opposite Party has contended that the said stone has reoccurred. Since, they have not proved this fact that stone of such size can reoccur in a period of 3.5 months as they have not produced any authentic literature on the point nor any independent expert opinion, we are inclined to reject the said contention as unworthy of reliance.
14. The Opposite party has not been able to prove this fact that stone of such size can reoccur in a period of 3.5 months and the X-ray report dated 03.09.2016 relied upon by them showing that the stone had been removed completely, has also been questioned as fake which the Opposite Party has not rebutted, so, cannot be relied upon.
15. Keeping in view the above discussion and the evidence on record, preponderance of probability and inferences, we are of the considered view that the Complainant has been able to prove his case of deficiency in service and medical negligence against Opposite Parties. Therefore, the Opposite Parties are held jointly and severally responsible for medical negligence in this case.
16. Accordingly, we allow the complaint and direct the Opposite Parties to pay to the Complainant the compensation of Rs. 1,00,000/- along with interest @ 6% p.a. from the date of institution of the complaint. The Opposite Parties are further directed to pay Rs.15,000/- towards litigation cost to be paid within a period of 4 weeks from the date of receipt of order. In case of delay in the payment beyond 4 weeks Opposite Party will be liable to pay interest @ 6% p.a. for the delayed period.
17. Order announced on 14.03.23.

Copy of this order be given to the parties free of cost.

File be consigned to Record Room. 

 

(Anil Kumar Bamba)               Member

(Surinder Kumar Sharma) President