Madhya Pradesh

StateCommission

FA/13/860

SHYAM SUNDER - Complainant(s)

Versus

DR. SUNIL GEHLOT - Opp.Party(s)

SH. R.K. KHANUJA

21 Oct 2022

ORDER

M. P. STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                         

                             PLOT NO.76, ARERA HILLS, BHOPAL

 

                                      FIRST APPEAL NO. 860 OF 2013

(Arising out of order dated 12.04.2013 passed in C.C.No.1592/2008 by District Commission, Indore)

 

SHYAM SUNDER,

S/O SHRI L. C. MEHTA,

R/O 103/1, TULSI AVENUE

VIDYA NAGAR, INDORE (M.P.)                                                                   … APPELLANT.

 

Versus

 

1. DR.SUNIL GEHLOT,

    THROUGH MATERNITY NURSING HOME,

    TILAK NAGAR, INDORE.

 

2. DR.VINOD ARORA,

    9, VISHNUPURI, BHAWANWAR KUA

    SQUARE, AB ROAD, INDORE.

 

3. MEDI SQUARE HOSPITAL,

    9, VISHNUPURI CHAURAHA,

    AB ROAD, INDORE.                                                                                …. RESPONDENTS.   

                     

BEFORE :

            HON’BLE SHRI A. K. TIWARI                : PRESIDING MEMBER

            HON’BLE SHRI D. K. SHRIVASTAVA   :          MEMBER

                     

COUNSEL FOR PARTIES :

                Shri R. K. Khanuja, learned counsel for the appellant.

           Shri Arvind Verma, learned counsel for the respondent 1 & 2.

           None for the respondent no.3 though served.

 

 O R D E R

(Passed On 21.10.2022)

                                The following order of the Commission was delivered by A. K. Tiwari, Presiding Member:              

                       

                       This appeal is directed against the order dated 12.4.2013 passed by the District Consumer Disputes Redressal Commission, Indore (For short ‘District Commission’) in C.C.No.1592/2008 whereby the District

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Commission has dismissed the complaint filed by the complainant/appellant. Hence this appeal.

2.                Brief facts of the case are that on 09.08.2008, the complainant consulted the opposite party no.1-doctor in Bhagwati Maternity Nursing Home with complaint of one sided abdominal pain, who advised different tests. On the basis of different tests and investigation reports, on 12.08.2008, the opposite party no.1-doctor advised him to get admitted in opposite party no.3 hospital, where he was operated for Appendicitis by opposite party no.1 and discharged on 14.08.2008. It is alleged that when there was no relief, on 18.08.2008, he consulted Dr. Amitabh Goyal and admitted in Choithram Hospital, Indore, where after different tests, investigations and CT scan he was diagnosed as a case of “Post Appendectomy Wound Dehiscence”. It is further alleged that Dr. Goyal found that due to negligent surgery and treatment there was pus formation and a deep wound. He remained admitted in Choithram Hospital from 19.09.2008 to 29.08.2008 for which he had to incur Rs.1,75,000/- in treatment and he was restricted to do his work for 90 days. It is alleged that this is all because of negligence of opposite party no.1.  He therefore filed a complaint alleging deficiency in service on part of opposite parties, before the District Commission claiming Rs.13,75,000/- towards compensation.

 

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3.                The opposite party no.1 admitted the fact of performing Appendectomy and has stated that special precautions are to be taken after surgery otherwise there is chances of infection. From the complainant’s statement it appears that his stitches were opened because of infection. The complainant was discharged and he was at his home and if there is any infection, the opposite party no.1 cannot be held negligent for the same. It is therefore prayed that the complaint be dismissed.

4.                The opposite party no. 2 & 3 have stated in their reply that on the instructions of the opposite party no.1, the complainant was admitted in opposite party no. 2 & 3 hospital and treatment was given under the supervision of opposite party no.1. The opposite party no.2 and 3 neither treated nor operated the complainant. The complainant did not make any allegations against them. It is therefore prayed that the complaint filed against them be dismissed.

5.                Learned counsel for the complainant/appellant argued that for the first time, the complainant/appellant was operated for appendicitis in Medi Square Hospital on 12.08.2008 from where he was discharged on 14.08.2008. On 18.08.2008, he consulted Dr. Rajesh Lekhi and on his advice consulted Dr. Amitabh Goyal, who diagnosed that the appellant is suffering from “Post Appendectomy Wound Dehiscence”.   He diagnosed that the operation and post-operative treatment was not proper and due to

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that the appellant has sustained infection, which resulted in a deep wound and therefore, the appellant had to be hospitalized from 19.08.2008 to 29.08.2008 in Choithram Hospital, Indore and had to spend an amount of Rs.1,75,000/-. He remained absent from his service for 90 days. He argued that the District Commission has not considered the aforesaid facts and evidence adduced before it. He argued that the impugned order is patently misdirected in law, based upon misconception about law and totally unsustainable on the facts and in the circumstances of the case. It is therefore prayed that the appeal be allowed by setting aside the impugned order.

6.                Learned counsel for the opposite party no.1 & 2/respondent no.1 & 2 doctor argued that the District Commission has rightly passed the impugned order dismissing the complaint of the complainant. The complainant failed to produce any evidence or any expert report to establish that post-operative infection was developed due to negligence of the doctor. If the problem persists after operation then it cannot be said that it is because of negligence of doctors. The doctor performed surgery after following the standard medical norms.  The complainant did not follow the precautions as explained to the patient and his family members. It is therefore prayed that the appeal is liable to be dismissed.

 

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7.                He placing reliance on the decisions of Hon’ble Supreme Court in Dr.(Mrs) Chanda Rani Akhouri & Ors Vs Dr. M. A. Methusethupathi & Ors. 2022 LiveLaw (SC) 391, Martin F.Dsouza Vs Mohd.Ishfaq I (2009) CPJ 32 (SC), Kusum Sharma and others Vs Batra Hospital and Medical Research 2010 (3) MPLJ 290, Post Graduate Institute of Medical Education and Research, Chandigarh Vs Jaspal Singh and Others 2010 (1) MPLJ 12 and a decision of this Commission in C.C.No.83/2001 (Smt. Naseem Begum Vs Dr. Laxmi Narain Arora) & Ors decided on 22.12.2007 argued that Medical Practitioner cannot be held liable for negligence simply because things went wrong from mischance/misadventure through error of judgment. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional.

8.                On perusal of record, we find that complainant has filed his affidavit and 31 documents as per list including different prescriptions, discharge cards, reports, medical bills and legal notice.  The complainant has also filed written arguments. The opposite party doctor has filed his affidavit along with written arguments.

9.                It is an admitted fact that the patient admitted in the Medi Square Hospital, Indore on 12.08.2008 where he underwent appendectomy on 12.08.2008 by the opposite party 1 doctor and he was discharged on

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14.08.2008. It is alleged by the complainant that after surgery problem still persists and later in Choithram Hospital & Research Centre, he was diagnosed as “Post Appendectomy Wound Dehiscence”, where he was treated during his admission from 19.08.2008 to 29.08.2008.

10.              The opposite party-1 doctor stated that the patient did not follow the precautions after surgery due to which infection developed, for which the treating doctor or the operating surgeon cannot be blamed.

11.              Before deciding whether there was negligence on the part of the opposite party no.1 doctor we have examined the different documents filed by the complainant more particularly the document no.5 discharge card of Medi Square Hospital, Indore at Page No.43, wherein it is mentioned that the patient was admitted on 12.08.2009 and on 12.08.2009 Appendectomy was performed and on 14.08.2008 he was discharged. At the time of discharge he was not having any problem. Document No.19 at Page 58, there is discharge card of Choithram Hospital & Research Centre, wherein it is mentioned that the patient was admitted on 19.08.2008 and on 26.08.2008 ‘Debridement with suturing under General Anesthesia’ was done and on 29.08.2008 he was discharged. There he was diagnosed as the “Post Appendectomy Wound Dehiscence”. In the history it has been mentioned as: “47 year male admitted on 19.08.2008 with complaints of: Pain in right side lower abdomen since 2 days, Discharge from wound right

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side lower abdomen since 2 days, Fever, Normal bladder and bowel habit. H/O Appendectomy 7 days back for acute on chronic appendicitis. No medical History.”

12.              So far as the post-operative problem of “Post Appendectomy Wound Dehiscence” is concerned, the opposite party no.1-doctor in his written arguments has mentioned that “Post Appendectomy Wound Dehiscence” means suture opening after Appendix operation, from which it is apparent that the problem persists for not following the precautions after surgery.

13.              From the documents particularly document no.5 (Page 43) filed by the complainant it is clear and admitted fact that after appendectomy, at the time of discharge the patient was having no complaint.

14.              It is very pertinent to mention here that post-operative care is most important to eliminate chances of infection in the wound and this applies in all kind of major and minor surgeries.  It is the responsibility of the patient and his attendants to strictly follow the post-operative care as may be suggested by the operating surgeon from time to time.  It is also the duty and responsibility of the patient and his attendants to take every precaution and care. It is also equally true that patient is more responsible in post-operative negligence more particularly after discharge from the hospital.

 

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15.              The diagnosis of Choithram Hospital & Research Centre, Indore as “Post Appendectomy Wound Dehiscence” means the wound got open due to infection and there may be many causes of infection for which the surgeon cannot be held responsible. So far as the argument of learned counsel for the appellant that Dr. Amitabh Goel diagnosed that the operation and post-operative treatment was not proper and due to that the appellant has sustained infection is concerned, there is no whisper from the any of the documents of Choithram Hospital that the problem occurred due to negligence in earlier procedure i.e. Appendectomy by the operating surgeon.

16.              There is no evidence on record which can establish that there was any negligence on part of the operating surgeon. The finding of the Choithram Hospital is clear that it was not due to surgery performed earlier but it was due to infection in the Appendix found in the body of the complainant. The Appendix itself is liable to be infected and inflamed by its own nature and it can cause pain and trouble when it get infected or perforated.

17.              Hon’ble Supreme Court in Jacob Mathew Vs State of Punjab & Anr III (2005) CPJ 9 (SC) has held that true test for establishing medical negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill

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would be guilty of, if acting with ordinary care.  The accident during the course of medical or surgical treatment has a wider meaning.  Ordinarily an accident means an unintended and unforeseen injurious occurrence, something that does not occur in the usual course of events or that could not be reasonably anticipated.

18.              Hon’ble Supreme Court in Martin F D’Souza Vs Mohd. Ishaq I (2009) CPJ 32 (SC) has held that simply because the patient has not favorably responded to a treatment given by the doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of Res Ipsa Loquitur. It is further observed that therein that sometimes despite best efforts the treatment of a doctor fails and the same does not mean that the doctor or the surgeon must be held guilty of medical negligence unless there is some strong evidence to suggest that the doctor is negligent.

19.              Recently the Hon’ble Supreme Court in Harish Kumar Khurana (Dr.) Vs Joginder Singh & Ors. II (2022) CPJ 43 (SC) has held that ‘To indicate negligence there should be material available on record or else appropriate medical evidence should be tendered.  The negligence alleged should be so glaring, in which event the principle of Res ipsa loquitur could be made applicable and not based on perception.”

 

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20.              In the case in hand, apart from the allegations made in the complainant in the complaint and affidavit filed, there is no other medical evidence tendered by the complainant to indicate negligence on part of the

Treating/operating Doctor. The complainant failed to produce any evidence or any medical expert report to establish that “Post Appendectomy Wound Dehiscence” was developed due to negligence of the doctor. If the problem persists after operation then it cannot be said that it is because of negligence of doctor.

21.              In view of the above discussion we find that the opposite party no.1-doctor has not committed any negligence or deficiency in service in treating/operating the patient. The complainant has not made any allegations against the opposite party no. 2 & 3. The District Commission has considered all the aspects and evidence available on record and passed a well-reasoned order.  We do not find any illegality or perversity in the impugned order. Accordingly it is maintained.

22.              In the result, the appeal being devoid of any merit is hereby dismissed.  No order as to costs. 

 

          (A.K. Tiwari)                (D. K. Shrivastava)         

                Presiding Member                    Member