Haryana

Yamunanagar

CC/873/2011

Fatima W/o Mohammad Aarif - Complainant(s)

Versus

Dr.Ish Chadha Of Chadha Hospital - Opp.Party(s)

None for complainant.

28 Mar 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                          Complaint No. 873 of 2011   

                                                                                          Date of institution: 12.08.2011

                                                                                          Date of decision: 28.03.2017

 

Fatima aged about 29 years wife of Mohammad Aarif, resident of village Mukarampur, P.s. Buria, Tehsil Jagadhri, District Yamuna Nagar.

 

…Complainant.

                                    Versus

 

1. Dr. Ish Chadha of Chadha Hospital, Sarni Chowk, Model Town, Yamuna Nagar, Distt. Yamuna Nagar.
2. District Health Officer, Yamuna Nagar.
3. State of Haryana, through Director, Health Services, Haryana, Panchkula.
4. United India Insurance Company Limited, 54 Janpath, cannaught place, New Delhi, vide policy No. 040100/46/05/00999.  

                                                                                                    

                                                                                                         …Respondents.

 

BEFORE:         SH. ASHOK KUMAR GARG…………….. PRESIDENT

                          SH. S.C.SHARMA………………………….MEMBER

 

Present:          None for complainant

                        Shri Naresh Khurana, Advocate for respondent No.1

                        None for OPs No.2 & 3.

                        Shri V.K.Sharma, Advocate for respondent No.4.

 

ORDER (ASHOK KUMAR GARG, PRESIDENT)

 

1.                      The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986.

2.                     Brief facts, as alleged in the complaint, are that the complainant got pregnancy and gave birth to a female child in the year 2003 but the said child was died in Mahindra Hospital, Jagadhri and there remained no problem after the said delivery and everything was normal. Thereafter, the complainant again got pregnancy for which the complainant was taken to the hospital of Op No.1 Doctor and OP No.1 doctor got cesarean operation of the complainant. The complainant gave birth to a female child on 09.10.2005. The said baby was quite healthy. However, at the time of cesarean operation, the Op No.1 put urine pipe at the time of discharge from the hospital. The Op No.1 Doctor stated that the discharge of urine will be stopped within 15 to 30 days. A sum of Rs. 40,000/- was spent on operation, hospital charges, medicines and other miscellaneous charges. After waiting for more than 2 months when the urine remained dripping from urine bladder, the complainant alongwith her husband visited the OP No.1 doctor and asked about the fact, upon which, Op No.1 doctor by concealing his negligence stated that the stop of dripping of urine can take 4 to 6 months and on this pretext the complainant kept mum and remained continued to visit the Op No.1 doctor with problem of dripping of the urine. The complainant remained under dark and continuously visited the Op No.1 doctor for about 5 years with the same problem, however, OP No.1 doctor has also stated that there was two (2) small holes in the urine bladder of the complainant and it can take more time. When the dripping of urine was not stopped, the complainant got foul smell. Ultimately, the complainant visited Kalra Eye and Maternity Hospital, Model Town, Yamuna Nagar on 06.08.2010 and Dr.  Neenu Kalra, got checked the complainant and charged Rs. 1000/- and advised the complainant to get some tests from N.K. Urology Centre Yamuna Nagar and then Ultrasound was also done but the problem could not be solved. Thereafter, the complainant being a poor lady visited the Civil Hospital, Yamuna Nagar, where after seeing the condition of the complainant, she was referred to PGI, Sector-32, Chandigarh. Upon which the complainant visited the Government Medical College and Hospital, Sector-32, Chandigarh on the same day and after inspection of the slip issued by the OP No.1 doctor, it was disclosed to the complainant that she was kept in dark because it is not possible for a lady to get pregnancy during dripping of urine and there is a gross negligence on the part of the OP No.1. After that some testes were also done and it was found that Op No.1 doctor while cesarean operation tied the urine pipe with the pipe of womb and that is why the urine is dripping and then the complainant was operated upon on 13.01.2011 and she was discharged on 24.01.2011. In this way, the complainant has spent more than Rs. 70,000/- on account of medicine, operation, hospital charges as well as fare charges etc. The OP No.1 has committed great negligence while operation that is why the complainant has suffered mental agony, physical harassment as well as financially. Lastly, prayed for directing the OPs to pay Rs. 4,50,000/- on account of mental agony, harassment etc. and Rs. 7700/- as litigation expenses. Hence, this complaint. 

3.                     Upon notice, OP No.1 doctor appeared and filed its written statement taking some preliminary objections such as complaint is bad for mis-joinder and non-joinder of necessary parties; the Op No.1 doctor has nothing to do with the case of complainant as he is not a maternity expert and it is Dr. Mrs. Jatinder Chadha, MBBS, MD (Gynecologist & Obst.), Chadha Hospital, Model Town, Yamuna Nagar who is maternity expert and had conducted the Caesarian operation of the complainant. It has been further mentioned that the OP No.1 doctor was insured with the United India Insurance Company Ltd. i.e. OP No.4 and if the Op No.1 is found liable for the alleged negligence then the insurance company is liable to indemnify the OP No.1 doctor and on merit it has been stated that  the reply of this complaint can be given by Dr. Mrs. Jitender Chadha who is maternity expert and conducted this cesarean operation and rest contents of the complaint were denied being matter of record as well as for want of knowledge. Lastly, prayed for dismissal of complaint.

4.                     Op No.2 & 3 appeared and filed its written statement besides preliminary objections it has been stated on merit that the OPs No.2 & 3 has no concern whatsoever of any kind with the Op No.1 Doctor Ish Chadha after his resignation which was accepted on 17.06.2004. The OP No.1 Doctor is practicing independently and is running his own hospital in the name and style of Chadha Hospital at Yamuna Nagar. Lastly, prayed for dismissal of complaint qua OPs No.2 & 3. 

5.                     OP No.4 Insurance Company appeared and filed its written statement by taking some preliminary objections such as the complaint is hopelessly time barred as per allegation of the complainant; the complainant was operated upon in the year 2005 and the present complaint was filed on 12.08.2011, much beyond limitation period and as such the same is liable to be dismissed; the complaint is bad for mis-joinder and non-joinder of necessary parties; Mrs. Jitender Chadha MBBS, M.D. was the necessary party who conducted the cesarean operation of the complainant but the complainant has totally failed to implead her. On merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly, prayed for dismissal of complaint as there is no deficiency in service or unfair trade practice or negligence on the part of OPs.

6.                     Complainant failed to adduce any evidence and her evidence was closed by court order dated 04.11.2015.  However, at the time of filing of complaint the complainant tendered her short affidavit and documents such as Birth Certificate as Annexure C-1, Clinical Laboratory test report as Annexure C-2, Prescription slip of N.K.Urology Centre and Stone Clinic as Annexure C-3, Ultrasound report of Dr. Pardeep Tahlan as Annexure C-4, Prescription slip of Kalra Eye and Maternity Hospital as Annexure C-5, Prescription slip of Chadha Hospital as Annexure C-6, Discharge & Follow Up card of Government Medical College Hospital, Sector-32, Chandigarh as Annexure C-7, Card of Chadha Hospital as Annexure C-8, Outdoor Ticket of Mukand Lal General Hospital, Yamuna Nagar as Annexure C-9, Photo copy of card of Government Medical College Hospital, Chandigarh as Annexure C-10 and Photo copy of ration card as Annexure C-11 in support of her complaint.

7.                     On the other hand, counsel for Op No.1 tendered into evidence affidavit of Dr. Ish Chadha as Annexure R1/A and documents such as Photo copy of degree of doctor of medicine as Annexure R1/1, Photo copy of insurance policy as Annexure R1/2, Degree of Maharishi Daya Nand University as Annexure R1/3Photo copy of Result Card of Maharishi Dayanand University as Annexure R1/4, Photo copy of certificate issued by Gandhi Medical College & Associated Hospitals, Bhopal as Annexure R1/5, Photo copy of insurance policy as Annexure R1/6Photo copy of declaration given by Arif alongwith treatment record as Annexure R1/7and closed the evidence on behalf of OP No.1.

8.                     OPs No.2 & 3 failed to adduce any evidence despite availing several opportunities and the evidence of the Ops No.2 & 3 was closed by court order dated 07.03.2017.

9.                     Counsel for Op No.4 tendered into evidence affidavit of Kuldeep Deputy Manager UIIC as Annexure RW4/A and documents such as Photo copy of insurance policy as Annexure R4/1, Photo copy of terms and condition of policy as Annexure R4/2 and closed the evidence on behalf of OP No.4.

10.                   We have heard the parties and have gone through the contents of the complaint and evidence placed on file by the complainant.

11.                   The only grievances of the complainant is that during the cesarean operation conducted on 09.10.2005, the OP No.1 Doctor tied the urine pipe with the pipe of womb and that is why the urine is dripping since then and the Op No.1 doctor was concealing his negligence on one pretext or the other and kept under dark to the complainant continuously for about 5 years and ultimately when the complainant visited the Civil Hospital, Yamuna Nagar and on advise of the doctors of the hospital she visited Government Hospital College , Sector-32, Chandigarh then she came to know that the OP No.1 doctor committed negligence during the cesarean operation on 09.10.2005 due to which the complainant has suffered mental agony, harassment as well as financial loss to the tune of more than Rs. 70,000/-. In support of her case, complainant has placed on file prescription slips/ reports Annexure C-3 to Annexure C-10)  but from the perusal of these documents one thing is clear that the cesarean operation was conducted on 09.10.2005 whereas the present complaint has been filed on 12.08.2011 i.e. after a period of near about 6 years. Further, we have also perused all the prescription slips as well as test reports and Ultrasound report placed on file by the complainant but not a single document i.e. OPD slip or any treatment slip has been placed on file by the complainant vide which she i.e. complainant obtained any treatment regarding dripping of the urine from any doctor or any hospital after discharge from the hospital of OP No.1 doctor on 09.10.2005 till visiting Dr. Neenu Kalra on 06.08.2010 vide OPD slip Annexure C-5 as mentioned by the complainant in her complaint.  Further, from the perusal of OPD slip issued by the Kalra Hospital on dated 06.08.2010 (Annexure C-5) it is duly evident that on that day there was no dripping. Even in the ultrasound report dated 08.08.2009 Annexure C-4 no such complaint regarding dripping has been mentioned. Although in the discharge follow up card issued by Government Medical Hospital Chandigarh Annexure C-6 under the head history it has been mentioned that dripping of urine from last 5 years back but even then it cannot be presumed that the alleged dripping was due to any negligence on the part of treating doctor during the year 2005 when the cesarean operation was conducted on 09.10.2005. The complainant has totally failed to move any application to appoint any team of doctors of the Civil Hospital to get the expert opinion regarding any negligence on the part of treating doctor and in the absence of any expert opinion and cogent evidence this Forum is unable to hold that there was any negligence on the part of treating doctor during the cesarean operation of the complainant conducted on 09.10.2005.

12.                   In the circumstances noted above, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of the OP No.1 doctor and the same views has been held by the  Hon’ble Supreme Court in case titled as “ Martin F.D. Souza Versus Mohd. Ishfaq, 2009(1) Supreme Court Cases Criminal 958 has held that Courts and Consumer Fora are not experts in medical science and therefore, they should not substitute their own views over that of specialists and in another case titled as “Kusum Sharma and Others Versus Batra Hospital and Medical Research Centre and Ors., AIR 2010 (SC), 1050” held that surgery performed for removal of abdominal tumor-Procedure adopted by doctor performing surgery supported by expert opinion- Negligence cannot be attributed to doctor- Medical professionals re not to be unnecessarily harassed or humiliated so that they can perform their duties without fear and apprehension. Malicious prosecution against medical professionals/hospital for extracting uncalled for compensation- Not maintainable.

13.                   On the other angle also, the OP No.1 Doctor has specifically mentioned in para No.1 of the W.S that the cesarean operation was conducted on dated 09.10.2005 by Dr. Mrs. Jitender Chadha MBBS, MD. Genealogist & Obst. but despite this fact, the complainant has not impleaded Dr. Mrs. Jitender Chadha due to reason best known to her in the present complaint. On this ground also, we are of the considered view that the present complaint is bad for non- joinder of necessary parties.  

14.                   Resultantly, in the circumstances noted above and after going through the facts of the case and case law referred above, we are of the considered view that there is no deficiency in service or medical negligence on the part of the OP No.1 doctor. The complainant has also failed to prove any negligence or deficiency in service on the part OP No.1 doctor. Hence, the present complaint of the complainant is hereby dismissed against all the OPs. No order as to cost. Copies of this order be sent to the parties concerned free of cost as per rules.  File be consigned to the record room after due compliance.

Announced in open Court:

Dated: 28.03.2017.

 

                                    (S.C.SHARMA )                    (ASHOK KUMAR GARG)

                                    MEMBER                              PRESIDENT,

                                                                                    DCDRF Yamuna Nagar