Complainant Neetu Kumari has filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties and praying that opposite party be directed to pay Rs.5,00,000/- to her for unnecessary harassment, physical pain and mental agony suffered by her from the hands of opposite party.
2. The case of the complainant in brief is that she got admitted in Civil Hospital Gurdaspur vide admission No.9500 dated 18.08.2012 and got operated by the opposite party for stone in her gall bladder i.e. Cholecystectomy. It was pleased that partial operation was conducted by the opposite party due to which stone retained in the Cystic duct stump & CBD Dilatation and complainant was discharged on 28.08.2012 from the Civil Hospital, Gurdaspur with a pain from which she was suffered before the operation. Opposite party got the operation done when he was posted at Civil Hospital, Gurdaspur and after a week of discharge complainant again herself medically checked by the opposite party as she felt pain and on checking complainant was informed by the opposite party that there was puss in the stitching and pain was due to this and opposite party also gave medicines to the complainant. It was further pleaded that complainant had no relief from the pain after taking the medicines which were suggested by the opposite party and there was severe pain to the complainant after six months from the operation. Opposite party got transferred from Gurdaspur to Civil Hospital, Pathankot and after knowing this fact complainant was approached to the opposite party at Civil Hospital Pathankot on 28.04.2014 vide OPD No.32908 and some medicines were prescribed by the opposite but of no use. It was also pleaded that complainant had no relief from the pain and she got treated from various doctors including FORTIS (Escort), Amritsar, P.G.I. Chandigarh and Sri Guru Ram Dass Hospital, Amritsar where doctors advised her for Ultra Sound Scanning in which same problem was found and complainant got operated twice in FORTIS (Escort) Hospital, Amritsar but operation of the complainant remained unsucessfull and lastly she was approached the doctors of Sri Guru Ram Dass Charitable Hospital, Amritsar on 31.10.2016 after getting the scanning report where Dr.Neeti Rajan Singh operated her and after that operation complainant had no such pain and feel quite well. It was next pleaded that due to the impartial operation done by the opposite party, complainant suffered a financial loss of Rs.5,00,000/- and also lot of physically, mentally and financially which amounts to carelessness, negligence and deficient service on the part of the opposite party. A legal notice dated 21.11.2016 was served upon the opposite party but of no avail, hence this complaint.
3. Upon notice opposite party no.1 had appeared through his counsel Sh.Gurdev Singh Sohal, Advocate and filed written reply by taking the preliminary objections that present complaint is misconceived, unwarranted and not maintainable against opposite part No.1 as there has been no negligence and deficiency of service on the part of opposite party No.1, that present complaint is abuse of the process of law and has been filed to harass the opposite party No.1, that complainant had failed to produce an iota of evidence or any material on record to show that there had been any negligence on the part of opposite party No.1 and that present complaint is devoid of any merit and is liable to be dismissed. On merits it was stated that every surgical procedure has its own risk factors and inspite of taking all care and caution in some cases, the complications do occur which does not signify negligence or deficiencies in the services rendered by the doctors. It was further stated that whenever any medical problem can be treated by more than one ways; the treating doctor can choose the line of treatment which he deems fit for the patient and the doctor can be faulted or adopting a particular line of treatment only when the regime adopted by him is palpably wrong but in this case the treatment was given by a standard protocol which cannot be treated as negligence or deficiency in providing the services. It was also stated that in this case services rendered by opposite party No.1 were of excellent quality and reasonable degree of professional competence, care, skill and diligence were exhibited by him. Some relevant medical facts were provided by opposite party No.1 alongwith which is as under:-
1. Cholecystectomy is considered to be the "standard" operation for gallstones, which provides relief of symptoms in a majority of cases.
2. However, at times, patients continue to experience symptoms ever after Cholecystectomy, and such condition is called "post- Cholecystectomy syndrome"
3. Wide range of disorders can cause "post-Cholecystectomy Syndrome", for e.g.: biliary strictures, retained stones in the CBD, or stones in a long cystic duct or in a remnant of the gallbladder.
4. Sometimes, Gallbladder remnant is left behind at the time of operation, usually in case of difficult Calot's triangle, where the anatomy may be distorted. In such a situation, continuing with dissection in the Calot's trianglecan lead to major complications such as CBD injury and/or vascular injury. In such cases, it is advisable to leave a cuff of the gallbladder, removing the rest of the gallbladder.
Opposite party No.1 also gave conclusion of above said medical facts which are as under:-
1. Continuance of symptoms even after cholecystectomy is well known in medical literature (known as "post- Cholecystectomy syndrome"), and does not mean that the treating doctor was negligent in any way.
2. Partial cholecystectomy is acceptable procedure of surgery and in no way proves negligence of the surgeon.
3. Retention of stone is Cystic duct remnant and CBD can occur in few cases as a complication, and does not mean that the treating doctor was negligent in any way.
It was next stated that the retaining of stone in the cystic duct stump and CBD dilatation after cholecystectomy is a known complication of the surgery performed, and in no way indicates negligence of opposite party No.1 as he provided reasonable care to the patient and also followed the standard and well accepted procedure of cholecystectomy which is followed by the surgeons of all over the world. All other averments made in the complaint have been denied and prayed for dismissal of complaint with costs. It is pertinent to mention here that on 07.12.2022 Sh. Dalip Bhandari and Sh.Kirtimaan Singh Bhandari Advocates have appeared on behalf of opposite party No.1 at the time of addressing the final arguments by filing their joint power of attorney.
4. Upon notice Sh.Tarsem Pal Clerk had also appeared on behalf of opposite party no.2 and filed written reply on their behalf by taking the preliminary objection that no cause of action has accrued to file the complaint against opposite party No.2 as alleged operation was conducted by opposite party No.1 and he is responsible for it. On merits, it was submitted that complainant was admitted in Civil Hospital, Gurdaspur vide OPD No.9500 dated 18.08.2012 and her operation was conducted by Dr.Sunil Kumar Medical Officer, Gurdaspur for stone in gallon bladder of complainant and she was discharged from the hospital on 28.02.2012. It was further submitted that successful operation was conducted by opposite party No.1 on 18.08.2012 and after two years complainant knows about the transfer of opposite party No.1 and approached him for checking. All other averments made in the complaint have been denied and lastly prayed for dismissal of complaint with special costs.
5. After filing of written reply none had appeared on behalf of opposite party No.2 for producing the evidence despite availing many opportunities and as such opposite party no.2 was ordered to be proceeded against exparte vide order dated 1.11.2017.
6. In order to prove the case, complainant had tendered into evidence her affidavit Ex.CW1/A, affidavit of Sat Pal Ex.CW-2/A alongwith copies of documents Ex.C1 to Ex.C77 and closed her evidence.
7. On the other hand counsel for the opposite party No.1 had tendered into evidence affidavit of Dr.Sunil Chand Medical Officer with copies of documents Ex.OP-1/1 to Ex.OP-1/3 and closed the evidence on behalf of opposite party No.1.
8. Written arguments filed by the complainant and opposite party No.1.
9. We have carefully examined all the documents/evidence produced on record for its contained statutory merit and have also judiciously considered and perused the arguments duly put forth by the learned counsels by the parties.
10. From the over all circumstances as enumerated in respective pleadings of the parties, it reveals that the complainant had got operated and was discharged on 28.08.2012 from the Civil Hospital, Gurdaspur. The complainant herself proved on the record the receipt as Ex C-3 vide which she deposited Rs.375 /- as operation charges.
As per the record she was admitted in Civil Hospital Gurdaspur on 18.08.2012 as Ex.C-3 and discharged on 28.08.2012 as mentioned in the complaint. It is fact that complainant was operated by opposite party No.1. During course of oral arguments it has been put forth by opposite party No.1 that he was transferred to Pathankot on the next day of the operation and the patient (Complainant) was discharged after 10 days by another doctor. After gap of almost 2 years the complainant again consulted the said doctor at Pathankot on 28.04.2014 as Ex.C-9 for same problem. Thereafter, the complainant got herself checked from other hospitals and again after a period of two years, (after 4 years from the previous operation) the complainant got herself operated from Shri Guru Ram Dass Charitable Hospital Amritsar after 31.10.2016 as Ex.C-27. It has neither been explained by the complainant that the problem for which she has been operated second time after a period of almost 4 years was the post operation problem related to first operation conducted by opposite party No.1 nor placed any cogent evidence on record in this regard.
11. Moreover, Civil Hospital Gurdaspur was under the Punjab Health System Corporation, Act 1996 and as per section 12 of this Act the control and management of all the Dispensaries and Hospitals with Dispensaries and non teaching hospitals as per schedule appended to the 1996 act, stand transferred in the corporation and are to work under its administrative control. Thus all the staff of civil hospital was under the control of the corporation for all intents and purposes they were the officers/servants of the corporation.
Section 15 of the 1996 Act reads as under:-
(1) No suit or prosecution shall be entertained in any court against the Corporation or against any officer or servant of the Corporation or person acting under the order or direction of the Corporation for anything which is in good faith done or intended to be done under this Act or any regulation made there under.
(2) No suit, prosecution or other legal proceedings shall lie against any officer or servant of the Corporation for any act done or purporting to be done under this Act or any regulation made there under without the previous sanction of the Corporation.
12. But in the present complaint, Firstly, the complainant has not taken prior sanction of the corporation. Secondly the complainant has not produced on record any evidence from which it could prove that there is any negligence on the part of treating doctor at the time of giving treatment. The complainant had not produced any expert evidence to prove that there is any negligence on the part of the opposite party. The complainant had to prove her case by leading cogent evidence. But the complainant has not produced any evidence in support of her allegations. By mere allegations of medical negligence it cannot be proved. As per the citation Usashi Mukherjee & anr. Vs Coal India Ltd. and ors. 2010 (1) Consumer Law Today, 136, in a case of Medical Negligence, it was observed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that "medical negligence-Burden of proof- the onus to prove medical negligence lies largely on the claimant – the onus can be discharged by leading cogent evidence – a mere averment in complaint which is denied by the other side cannot be said to be evidence by which case of complainant can be said to be proved – it is the obligation of the complainant to provide the facta probanda as well as the facts probantia" and further the citation 2014 (3) Consumer Law Today, 9 titled as Vijay Dutt Vs Dr. R.D. Nagpal & others whereas our Hon'ble National Commission, New Delhi observed that doctors cannot give a warranty of the perfection of their skill or a guarantee of cure and if the doctor has adopted the right course of treatment and if he is skilled and has worked with a method and manner best suited to the patient, he cannot be blamed for negligence if the patient is not totally cured". And further in citation 2010 (2) Consumer Law Today, 282 (SC) titled Kusum Sharma & ors. Vs Batra Hospital & Medical Research Centre & Ors ,whereas Our Hon'ble Apex Court laid down Basic principles regarding medical negligence which are reproduced as under:- "On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-
I. 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.
II. 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.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. 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.
VI. 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.
VII. 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.
VIII. It would not be conductive to the efficiency of the medical profession, if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden 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.
X. The medical practitioners at times 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.
XI. The medical professionals 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. In para no. 90 our Hon'ble Apex Court has observed that “As long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind".
13. Therefore as a sequel of the above discussion, facts and circumstances of the case and relying upon the above referred judgments we come to the conclusion that in the present complaint, the complainant has neither taken prior sanction of the corporation nor proved negligence on the part of the opposite party No.1. We are fully convinced with counsel for opposite party No.1. We found no merits in the present complaint and the same is hereby dismissed with no order as to cost.
14. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
15. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Kiranjit Kaur Arora)
President
Announced: (B.S.Matharu)
March 10,2023 Member
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