Haryana

StateCommission

A/746/2014

Rakesh Gulati - Complainant(s)

Versus

Dr.Ajay Sharda - Opp.Party(s)

Mr. Pankaj Mehta, Advocate for the appellants

15 Dec 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                First appeal No.746 of 2014

Date of the Institution: 22.08.2014

Date of Decision:15.12.2016

 

1.      Rakesh Gulati s/o Late Smt. Raj Kumar W/o Sham Sunder

2.      Deepak Gulati s/o Late Smt. Raj Kumari W/o Sham, Sunder

3.      Rekha Gulati D/o Late Smt.Raj Kumari W/o Sham Sunder.

…..Appellants

Versus

1.      Dr.Ajay Sharda,Sharda Nursing BHome, # 106, Guruduar Road, Model Town, Hisar Tehsil & Distt. Hisar.

2.      Dr. Mona dua, R/o # 953, Sector 13 (Part), Hisar, Tehsil and Distt. Hisar.

3.      Dr.Anju Yadav, Sharda Nursing Home, # 106, Guruduar Road, Model town, Hisar Tehsil & District Hisar.

4.      United India Insurance co. Ltd., Capital Cinema Building, VS Marg, Lucknow, having registered & Head Office 24, White road, Chennai-600014 with whom the Respondent No.1 was insured vide policy No.082401/46/08/35/00000019 dated 09.05.2008 valid from 09.05.2008 to 08.05.2009.

(a) United India Insurance Co. Ltd., Capital Cinema Building Vs Marg, Lucknow, having Registered & Head office 24, White Road, Chennai 600014 with whom the Respondent NO.3 was insured vide policy NO.082401/46/35/00000019 dated 09.05.2008 valid from 11.04.2008 to 10.04.2009.

…..Respondents

CORAM:    Mr.R.K.Bishnoi, Judicial Member

                    Mrs.Urvashi Agnihotri, Member

 

Present:-    Mr. Pankaj Mehta, Advocate for the appellants.

                   None for the respondent  Nos.1 and 2.

                   Mr.Ashish Chaudhary, Advocate for the respondent No.3.

                   Mr.Sukaam Gupta, Advocate counsel for the respondent No.4.

 

O R D E R

R.K.Bishnoi, JUDICIAL MEMBER:

 

          As per complainants their mother Raj Kumari (Since deceased) had stomach ache on 04.02.2009 and was taken to Dr.Girdhar who prescribed some medicines on 05.02.2009.  He gave  Vovran injection and asked them to consult some surgeon as he was suspecting stone.  Due to injection she had little relief, but, during night she started vomiting.  On 06.02.2009 she was taken to Dr. Ajay Sharda i.e. O.P.No.1 and he stopped medicines prescribed by Dr. Girdhar and asked to get ultrasound done on the next day.  On 07.02.2009 he asked to continue medicines already prescribed him and if there would be no improvement she would be admitted in the hospital. As  Raj Kumari (Since deceased) started vomiting she was admitted in his hospital on that very night.  In the next morning it was told that there was swelling in intestine and could be  cured with medicines. When there was no improvement  Dr.Rakesh Mehta, physician  was called by O.P.No.1 on 09.02.2009.  He also prescribed some medicines but without any relief.  Ultimately he asked them to consult doctor Ajay Singh of Holy Hospital. He discussed matter with O.P.No.1 on Telephone and advised laparoscopy operation after 48 hours. On 13.02.2009 O.P.No.1 told that operation would be conducted and there would be very small  incision. On 14.02.2009  O.P.No.1 operated upon Raj Kumari and told that the same was successful. After some time they saw that oxygen cylinders being taken inside the operation theatre. It was told that Raj Kumari was having some respiratory problem. Dr. Mona Dua, O.P.No.2, administered local anesthesia.  After some time it was told by O.P.No.1 to him that it is very difficult by staff to pump on oxygen cylinders throughout the night.  As per advise of Dr.Ajay Singh she was shifted to Holy Hospital where she was put on ventilator. It was told by doctors of Holy Hospital that chances of survival were 50-50. From 15.02.2009 onwards O.P.No.2  accompanied by helper of O.P.No.1 used to come at Holy Hospital for dressing.  Once her brother Girish Luthra, requested to allow him to see the size of the wound, but, was not allowed .  As O.P.No.1 was out of station on one day, staff of Holy Hospital carried out dressing and found that the  Fecal matter  was coming  out. They called Dr.Sandeep Suri and he asked O.P.No.1 to come to hospital.  At about 11.00 P.M. he came there and told that it was not major problem and wound shall heel up  within a day or two.  On next date they requested O.P.No.1 to call doctor N.D.Gupta  to examine the patient.  It was told by O.P.No.1 that he was coming after one hour alongwith Dr. Grewal, but, he did not turn up.  At about 05.30 p.m. they contacted Dr. Grewal and he asked them to come to his hospital. He contacted Dr.Ajay Singh of Holy Hospital, but, he was away in connection  with some seminar for last three days.  Dr. Grewal visited at about 11.00 A.M. and after seeing condition of the patient, he told that it was 100% risk factor and  an another operation is to be conducted.  He also told that chances of survival were very bleak because patient was suffering from septicemia. Dr. Grewal started operation at 10.00. PM and when stitches were removed  fecal matter came out. She kept on ventilator for 42 days but could not survive.  It was  told  that operation was not conducted properly by O.P.No.1.  The death occurred due to negligence and carelessness on the part of the O.Ps.  They spent Rs.eight lacs on her treatment.  Complainant No.3 lost her job due to regular presence at the hospital and scooter was also stolen.  They be granted compensation of Rs.two lacs qua cost of treatment, and Rs.two lacs qua mental agony, harassment etc.

2.      All the O.ps. filed the separate replies controverting her averments.  It was alleged by O.P.No.1 that complaint was bad for non-joinder of necessary party i.e. United India Insurance co. ltd as being his insurer. She came to him on 06.02.2009 in the evening with the history of pain in abdomen and vomiting. After physical examination she was advised to go for ultrasound. On 07.02.2009 she again came back with ultrasound report wherein swelling in intestine was reported.  After certain tests her treatment was started with antibiotics. As the diagnose was not clear so open surgery was advised, but, attendants of patient discussed matter with Dr.Rajesh Mehta and Dr.Ajay Singh and they also advised on the same line.  Risk factor was clearly explained to them. Ultimately operation was conducted on 14.02.2009 and it was found that there was hole in the intestine which was repaired. As she was 65 years old it was told to her attendants that after operation she may not be able to breath properly on her own and support of ventilator may be required.  As per their request she was referred to Holy Hospital of Dr.Ajay Singh. No laparoscopy was done by them and it was open surgery case.  There was no negligence on his part. He was not concerned about treatment given by the other doctors.  He was well qualified surgeon and took all the necessary steps required for operation.  He was not liable to pay any compensation and the complaint be dismissed.

3.      In addition thereto, O.P.No.2 alleged that she had given  general anesthesia only to Raj Kumari and there was no complication due to the same.  The averments about negligence in conducting operation and post operative treatment were altogether wrong. Objections about concealment of fact, mis-joinder and non-joinder of the parties etc. were also raised and  requested to dismiss the complaint as far as her case is concerned.

4.      In addition thereto O.P.No.3 alleged that she conducted only ultrasound and there was no negligence on her part.  It was no where alleged by the complainant that she did not give proper report or negligent in any manner. She was not concerned with treatment part. She was not liable to pay compensation and the complaint be dismissed qua her.

5.      O.P.No.4 is insurance company and denied it’s liability to pay any compensation.

6.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Hisar (In short “District forum”) dismissed the complaint vide impugned order dated  18.07.2014.

7.      Feeling aggrieved therefrom, O.Ps. have preferred this appeal.

8.      Arguments heard. File perused.

9.       Learned counsel for the O.Ps. vehemently argued that  the complainants have miserably failed to prove that there was any negligence on the part of the O.P. Nos.1 to 3 about  treatment. It was a case of open surgery and not laparoscopy. It was told to complainants that due to old age patient may require respiratory support from ventilator.  O.P.No.1 is competent surgeon and conducted operation with all care and caution. If after operation some complication has arisen, not due to fault of surgeon, he could not be held liable. So, learned District Forum, rightly dismissed complaint.  Appeal has no merits and the same to be also dismissed.

10.    This argument cannot be accepted because if we scan evidence available on the file it will be clear that proper procedure was not followed.  It is no where proved that attendants of patient were told that open surgery was required.  O.ps. are trying to conceal the lapses on their part one way or the other.  It is no where proved that consent of attendants was obtained on 14.02.2009, when the operation was conducted.  It is also not proved that the attendants were told that it was a case of open surgery.  Discharge summary issued by O.P.No.1 is Ex.R-3 and this fact is altogether missing therein. The signatures of one Deepika were obtained on 08.02.2009, whereas  operation was conducted on  14.02.2009. When the signatures were obtained much before operation, it is no consent.  More so how Deepika is related is also not proved.  This document was prepared on 14.02.2009 so how signatures were obtained on 08.02.2009.  It shows signs were obtained as blank paper and was filled lateron. As per discharge summary there was fecal matter in the small intestine even before discharge.  It shows that infection was already there but the attendants were not made aware about the same.  As per Ex.R-3 patient was 60 years old and after operation when she was having difficulty in breathing she was shifted to Holy hospital to be put on ventilator. It is no-where mentioned that she was fully conscious and out of danger at that time.  As per treatment record Ex.C-4 she was put on the ventilator. Had she been perfect there would not have been any necessity to put her on ventilator. 

11.    Moreover if O.P.No.1 was suspecting that there could be breathing problem after operation then why he conducted the same  when there was no facility of ventilator.  He could have told them straightway that due to non availability of ventilator facility, he could not conduct the operation and she could be taken to some other centre.  It appears that instead of proper guidance he tried his hands on a patient who was in critical condition, just to earn money.

12.    In written statement it was alleged by O.P.No.1 that the age of patient was 60-65 years and attendants were told about respiratory problem whereas according to discharge summary she was 65 years old. So all these facts clearly show that there was negligence on the part of the O.P.No.1 about this  operation.

13.    More so matter was referred to Civil Surgeon, Hisar about the opinion. Board of Directors gave report dated 14.10.2009 wherein it is clearly mentioned that it was a case of prima facie negligence on the part of respondent No.1. For ready reference the  relevant portion of that letter is as under:-

“With reference to your office order No.ST-2009/(8)2256-58 dated 29.09.2009 and ST-09/2318-19 dated 09.10.2009, the panel of above doctors has studied, analyzed the documents sent by Hon’ble District Consumer Disputes Redressal Forum, Hisar through your good office (returned after duly signed by Panel of Doctors page 1 to 146) and in the opinion of the Panel, it appears that Prima Facie negligence on the part of Respondent No.1 cannot be ruled out and there is nothing in these documents to suggest a prima facie negligence on the part of Respondent Nos.2 and 3”

When board of doctors have also opined that there was negligence on the part of the O.P.No.1 he cannot escape from his liability. It cannot be expected from a layman to prove any case beyond shadow of doubt. One can only produce the relevant documents and can narrate all the developments. It is for the experts to look into the matter. As the experts have also found negligence on the part  of O.P.No.1, he cannot escape from the liability.  Learned District Forum failed to take into consideration this aspect. Due to negligence on the part of the O.P.No.1, complainants lost their mother.  So they are entitled for compensation from him.  As per complainants they spent Rs.eight lacs on her treatment.  Ex.C-5 shows Rs.7,90,334/- about medicine ICU prescription etc. They must have spent some more amount which is not regularly accounted.  So, it can be safely presumed they spent Rs.eight lacs on her treatment.  In view of above discussion the complaint is allowed. The complainants are held entitled for compensation to the tune of Rs.Eight lacs for the treatment alongwith interest @ 09% per annum from the date of filing of the complaint till realization.  The complainants are also granted compensation of Rs.50,000/- for mental agony and harassment.  O.P.Nos.1 and 4 are held liable to pay the abovesaid amount jointly and severally because O.P.No.4 indemnified liability of O.P.No.1 vide insurance policy Ex.R-4.

 

December 15th, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.