Haryana

Ambala

CC/75/2016

Pawan Kumar - Complainant(s)

Versus

Dr. Ramesh Pasricha - Opp.Party(s)

Rajesh Sharma

09 Mar 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

Complaint Case No.      : 75 of 2016

Date of Institution         : 04.02.2016

Date of Decision            : 09.03.2018

 

Pawan Kumar aged 31 years son of Sh.Atma Ram resident of village Baldwala Tehsil & District Panchkula.

 

                                                                             ……Complainant.

Versus

 

1.Dr.Ramesh Pasricha, Pasricha Nursing Home, Ambala Road, Naraingarh (Ambala).

2.United India Insurance Company through its professional indemnity policy No.041200/46/14/35/00004432 effective from 28.09.2014 to 27.09.2015.

 

                                                                                 ……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act

 

BEFORE:   SH. D.N. ARORA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

                   MS. ANAMIKA GUPTA, MEMBER.

                  

Present:       Sh. Rajesh Sharma, counsel for complainant.

                   Sh. H.S.Garg, counsel for OP No.1.

                   Sh. S.C.Jaiswal, counsel for OP No.2.  

 

ORDER

 

                   Brief facts of the present complaint are that the complainant was having pain in his lower part of body below the abdomen and he approached the OP No.1 who after diagnose informed the complainant that he is suffering from Vericocele disease and started treatment by prescribing some medicine but the pain remained continue therefore, on 11.10.2014 the OP No.1 conducted operation on the complainant. The complainant remained admitted in the hospital and on 16.10.2014 stitches of the complainant were removed. On 21.10.2014 the complainant again went to the Op No.1 for his medical checkup as the complainant was having severe pain  but the Op No.1 advised for some medicines in routine which the complainant kept on taking but on 21.11.2014 the complainant again visited the Op No.1  but he advised medicines for three months in order to get well but all in vain as the disease of the complainant was not treated. The complainant again went to the OP no.1 but he advised medicines for five months. Thereafter the complainant got his ultrasound from Panchkula Welfare Trust and came to know that  the disease was still existing in the body of the complainant and thereafter he approached Op No.1 but he did not pay any heed as the ultrasound was not got done from General Hospital Sector 6, Panchkula and GMCH, Sector, 32 Chandigarh. After that the complainant visited General Hospital Sector 6 Panchkula on 30.09.2015 where he remained admitted in the hospital till 03.10.2015. The complainant was again operated for his disease i.e. Vericocoele on 01.10.2015 in General Hospital Sector 6, Panchkula.  The Op No.1 has failed to adopt the requisite procedure for treatment of the complainant as per medical science as the operation performed by him could not succeed. Due to the medical negligency on the part of the Op No.1 the complainant has to suffer mental agony, harassment besides financial loss. In evidence, the complainant has tendered affidavit Annexure CA and documents Annexure C1 to Annexure C9.

2.                          On notice Ops appeared and filed their separate replies. OP No.1 in its reply has taken many preliminary objections such as cause of action and maintainability etc. It has been submitted that the complainant had visited OP No.1 and he was diagnosed as a case of variccele of the left side of the scrotum. He was advised operation and informed about the possibility of recurrence after the operation and other complication such as hydrocele, etc. He agreed for the operation so necessary investigations and general physical examination was done which were found normal, therefore, he was came back in 2-3 days for operation. He had again visited OP No.1 with pain after operation approximately one month later and on examination of scrotum tortuous veins could not be palpated in the scrotum and he tried to convince him and further advised to consult GMC-32 Chandigarh. Thereafter the complainant never came back. There is no negligence, deficiency in service and unfair trade practice on the part of OP No.1 as he was treated/operated diligently, prudently with utmost care and caution. Other contentions have been controverted and prayer for dismissal of the complaint has been made.

                   OP No.2 in its reply has submitted that the point in this issue cannot be decided in summarily manner and it requires voluminous evidence, therefore, this Forum has got no jurisdiction.  It is denied that due to act and conduct and unfair trade practice the complainant has suffered from mental agony and harassment  and the liability of Op No.1 is subject to conditions of the policy and if there is breach of condition of the insurance policy the company will not be liable to pay compensation. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the Ops have tendered affidavits Annexure RA, Annexure RX and documents Annexure R1 & Annexure R2.

3.                          We have heard learned counsel for the parties besides going through the material available on the case file very carefully.

4.                          It is admitted fact that the patient had visited the hospital of Op No. 1 on 06.10.2014 and with the complaint of pain lower abdomen and he was clinically examined and diagnosed as a case of Vericocele disease of the left side of scrotum (testis) and same was diagnosed and established as per the ultrasound report and Doppler Scrotum dated 24.09.2014 (Annexure C4). Patient got himself admitted in the hospital of OP and was operated on 08.10.2014 for Vericocele left side and discharged on 18.10.2014 as per treatment record Annexure C5. As per the version of the complainant after surgery he had visited to the hospital of the OP No.1 for complaint of persisting pain on the same side despite conducting the operation but the pain still subsists, therefore, he had visited another hospital i.e. General Hospital, Panchkula as per Annexure C1 and Annexure C2 and diagnosed as per report for Scrotum Doppler colour ultra sonography as per Annexure C6 dated 23.06.2015. The patient was again diagnosed as a case of Vericocele disease of the left side of scrotum (testis) and he was re-operated on 30.09.2015 and discharged on 03.10.2015.

                   Now, the grouse of the complainant is that Op No.1 has wrongly operated and he had to undergo repeat surgery due to medical negligence done on the part of op No.1 and the complainant has suffered monetary loss besides mental agony, harassment and pain and sufferings.  

                   We have gone through the literature produced by the OP No.1 wherein it is clearly mentioned that there is every chance of re-occurring after surgery. In the present case first surgery was done on 08.10.2014 and second surgery was done after a period of more than 10 months i.e. on   30.09.2015.  The relevant literature is as under:

Vericoceles are abnormally dilated testicular veins (pampiniform plexus) of  in the scrotum, which is normally secondary to internal spermatic vein reflux. Varicocele is found in approximately 15 % of the general population, 35 % of men with primary infertility and in 75 to 81 % of men with secondary infertility. It is more common on the left side. In adolescents, the incidence of varicocele is approximately 15 % the abnormality is extremely rare in prepubertal boys.

                             Although most men with varicoceles are able to father children, there is abundant evidence that varicoceles are determinetal to male fertility. A study by the World Health Organization (WHO) on over 9,000 men showed that vericoceles are commonly accompanied by decreased testicular volume, impaired sperm quality, and a decline in Leydig cell function 2.Another report by Johnson and colleagues showed that 70 % of healthy, asymptomatic military recruits with palpable varicoceles had an abnormality on seman analysis 3.Furthermore, studies in animals 4, 5 and humans 6-8 suggest that varicoceles cause progressive testicular damage over time. It appears that surgical repair of varicoceles not only halts this declines in testicular function but often reverses it. Whether the improvements in seman parameters, seen in 80 % of men after varicocele ligation, translate into improved pregnancy and delivery rates has been a matter of ongoing controversy. Recent studies employing non-operated control groups clearly indicate that varicocelectomy does improve pregnancy rates.

          Failure is usually due to preservation of the periarterial plexus of fine veins (venae comitantes) alongwith the artery. Various studies reported that artery preservation during laparoscopic varicocelectomy results in higher recurrence/persistence rates (3.5-20%) than when the spermatic vessels are ligated. These venae comitantes have been shown to communicate with larger internal spermatic veins. If left intact, they may dilate with time and cause recurrence. Thus, in the majority of laparoscopic varicocelectomy, the artery is intentionally ligated to minimize the recurrence/persistence rates. Although testicular atrophy is rarely reported ligation of the testicular artery can potentially impair the ability of the testis to maximize its function in the long run, particularly in adults.

                   Less commonly, failure of laparoscopic varicoceletomy is due to the presence of parallel inguinal or retroperitoneal collaterals which may exit the testis and bypass the ligated retroperitoneal veins rejoiing the internal spermatic vein proximal to the site of ligation. Likewise dilated cremasteric veins, another caue of vericocele recurrence, cannot be identified retroperitoneally with the laparoscopic approach.

         

                             Hon,ble Apex Court of India in title  “Kusum Sharma & ors. Vs. Batra Hospital & Medical Research Centre & others reported in 2010(2)RCR (Civil) 161 wherein the Apex Court of India has directed to keep in view the following principles while holding medical negligence:-

1. Negligence is the breach of a duty exercised 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.
2. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring a reasonable decree of skill and knowledge and must exercise a reasonable decree of care. Neither the very highest nor a very low decree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
4. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
5. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
6. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
7. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.
8. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.
9. It is our bounded duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
10. The medical practitioner at time also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
11. The medical professional are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals. 2005 (3) RCR (Crl.) 836 relied.

                   In view of above principals mentioned in the judgment delivered by the Apex Court of India in case title Kusum Sharma & ors. Vs. Batra Hospital & Medical Research Centre & others (Supra) as well as the literature discussed above, the opposite party No.1 has not committed any medical negligence while treating the complainant, therefore, we are of the confirmed view that the Op No.1 had followed the well establish principle of diagnose in treating the complainant as mentioned in the medical literature as mentioned above which is being accepted worldwide and the same treatment had given by the treating doctor as per medical line. The complainant has failed to prove his case against the OPs by leading cogent and reliable evidence which could show that the OP No.1 was deficient in providing service. We accordingly dismiss the present complaint leaving the parties to bear their own costs. Copies of this order be sent to the parties free of costs. File be consigned to the record room.

 

ANNOUNCED ON:      09.03.2018

 

                        

                           

(PUSHPENDER KUMAR)     (ANAMIKA GUPTA)      (D.N.ARORA)

MEMBER                                MEMBER                      PRESIDENT