Haryana

StateCommission

A/470/2015

SUDESH - Complainant(s)

Versus

DR.MANOJ GARG AND OTHERS - Opp.Party(s)

R.K.HOODA

06 Jan 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      470 of 2015

Date of Institution:      22.05.2015

Date of Decision :       06.01.2016

 

Smt. Sudesh wife of late Ashok, Resident of Village Koth Kalan, Tehsil Barwala, District Hisar.

                                      Appellant/Complainant

Versus

 

1.      Dr. Manoj Garg, Garg Health and Child Care Centre, Scheme No.5, Gohana Road, Jind, Tehsil and District Jind.

2.      Dr. Neelam, Ultrasound and X-ray centre, Kothi No.44/19, Opposite Head Post Office, Scheme No.19, Jind, District Jind.

3.      United India Insurance Company Limited, Jind, through its Branch Manager, Jind.

4.      Oriental Insurance Company Limited, Jind, through its Branch Manager, Jind.

                                      Respondents/Opposite Parties

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Present:               Shri R.K. Hooda, Advocate for appellant.

                             Shri M.K. Garg, Advocate for respondent No.1.

Shri Subhash Chand, Advocate for respondent No.2.

Shri Satpal Dhamija, Advocate for respondent No.3.

Shri D.C. Kumar, Advocate for respondent No.4.

                              

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This appeal of un-successful complainant is directed against the order dated 16^th February, 2015, passed by District Consumer Disputes Redressal Forum, Jind (for short ‘the District Forum’) in Complaint No.265 of 2012.

2.      Sudesh-complainant/appellant, filed complaint under Section 12 of the Consumer Protection Act, 1986 averring that she was suffering from abdominal pain and visited Dr. Manoj Garg-Opposite Party No.1, on May 26^th, 2012 where she was admitted. After examining the patient, the opposite party No.1 advised ultrasound test from Dr. Neelam-Opposite Party No.2. Accordingly, ultrasound was got conducted from opposite party No.2. The opposite party No.2 gave report stating that there was no appendicitis but still the complainant did not feel any relief from pain. On May 28^th, 2012 again ultrasound was got conducted from the opposite party No.2 and this time it was observed by the opposite party No.2 that the complainant was suffering from appendicitis. However, still there was no relief to the complainant.  According to the complainant, the opposite party No.1 charged Rs.9,000/- from her during the period from May 26^th to May 28^th, 2012. Not getting any relief, the complainant was referred to Maharaja Aggarsain Hospital, Jind in, where she was examined by Dr. Kanwar Singh Goel and Dr. Vipul Aggarwal. It was observed by the doctors that the appendix had burst inside the abdomen due to which septic had developed and life of the complainant was in danger. The doctors advised for operation. Accordingly, the complainant was operated on May 29^th, 2012. The complainant remained admitted in Maharaja Aggarsain Hospital from May 29^th to June 8^th, 2012 where she incurred Rs.40,000/- on her treatment. Thus, alleging medical negligence and deficiency in service on the part of the opposite parties No.1 and 2, the complainant sought compensation of Rs.4,99,000/- alongwith interest @ 24% per annum besides cost of litigation.

3.      The opposite party No.1 in his reply stated that the complainant had visited his hospital complaining of abdomen pain, fever and diarrhea. After examining the complainant it was observed that the symptoms were of acute colitis and not of acute appendicitis. Before admitting the complainant, she was advised ultrasound abdomen and was referred to Dr. Neelam-opposite party No.2, who is a qualified ultra sonologist. The report given by the opposite party No.2 showed “MILDLY DILATED SMALL GUT LOOPS”. Opposite Party No.1 is a qualified doctor having degree MBBS,MD (Medicine). He remained lecturer in medicine in Post Graduate Institute of Medical Sciences, Rohtak and also worked as Registrar for three years in the said institute. The complainant was given conservative treatment, that is, standard conservative protocol on May 26^th, 2012. On May 27^th, 2012, the complainant was feeling relief, no fever and patient passed stool normally. On May 27^th tenderness was noticed. She was again referred to radiologist for ultrasound and review examination. As per report of the ultrasound, appendicitis was found. The complainant was advised surgery. Even the case was discussed with Dr. K.S. Goel and the complainant was advised to go for surgery from Dr. K.S. Goel but she insisted to be admitted till morning as there was no male attendant with her. Again the complainant was advised to go for surgery and accordingly she was sent to surgeon on May 29^th, 2012. Denying any kind of medical negligence, it was prayed that the complaint be dismissed.

 4.     Opposite Party No.2 in her reply stated that USG examination upon the abdomen of complainant was conducted and on radiological examination everything was found normal except few mildly dilated gut loops which might have been present due to some intestinal infections. Again USG examination was conducted on May 28^th, 2012 and it was found that the appendix was inflamed and fluid was seen around the appendix. The USG examination is not primarily meant for diagnosis of appendicitis, however, it can be visible during USG examination when it is thickened or distended. There are some sonological features of acute appendicitis but there is a high percentage of alse negative and false positive results therefore one cannot exclusively depend on USG examination for ruling out the diagnosis of acute appendicitis. An acutely inflamed appendicitis might also not be visible on USG examination due to inherent limitations of imaging modality. Therefore, diagnosis of appendicitis is done clinically. Thus, denying the allegations of the complainant, it was prayed that the complaint be dismissed.

5.      The opposite parties No.3 and 4 while denying allegations of the complainant, prayed for dismissal of the complaint. However, they admitted that the opposite parties No.2 and 1 (respectively) were insured with them.

6.      On appraisal of the pleadings and evidence of the parties, the District Forum finding no substance in complainant’s version, dismissed the complaint.

7.      The contention raised on behalf of the appellant/complainant is that the complainant approached Dr. Manoj Garg-opposite party No.1 with complaint of abdominal pain who referred the complainant to Dr. Neelam-Opposite party No.2 for ultrasound examination and Dr.Neelam, in her report Exhibit C-12 did not mention about appendicitis and the complainant not getting any relief was again referred for review, when the opposite party No.2 without fresh ultrasound examination and on the basis of old report mentioned it  to be a case of appendicitis. Thus, it was a case of wrong diagnosis and wrong report.

8.      Opposite Party No.2 – Dr. Neelam, in her report dated 26^th May, 2012 (Exhibit C-12) mentioned “Mildly dilated small gut loops seen”. Under the heading ‘Impression’ it was mentioned “colitis”. She has specifically mentioned that on 28^th May, 2012 “again ultrasound examination was conducted and appendix was found inflamed and fluid was seen around appendix”. This is subsequent report on the same document Exhibit C-12.  There are further allegations that the opposite party No.1 did not immediately referred the complainant to surgeon and delayed it, which led to bursting of appendix and putting the life of the complainant to danger. At this stage, it would be relevant to refer to treatment record.

9.      The opposite party No.1 has mentioned in the treatment record Exhibit OP-5 at 9.00 A.M. for review ultrasound and surgeon opinion and at 1.00 P.M. on the same day has mentioned that as per ultrasound examination it was appendicitis and advised for surgeon opinion. However, the attendants of the complainant stating that they would decide as to which surgeon to go. At 3.00 P.M., opposite party No.1 discussed with Dr. K.S. Goel, Surgeon, however, the attendants of the complainant refused to shift and insisted for shifting the complainant on the next day. At 6.00 P.M. again the attendants being advised to shift the complainant refused stating that they would do that on the next day and finally on May 29^th, 2012, the complainant was shifted to Maharaja Aggarsain Hospital, Jind.

10.    Besides the fact that the complainant has failed to lead any evidence as to how the opposite parties No.1 and 2 were deficient or did any unethical work, the complainant as well as her attendants were themselves responsible for the delay in treatment.  A perusal of treatment record specifically pointed out that the complainant being advised at every stage on the expected lines of treatment and it is the complainant or her attendants, who were responsible for the delay and in such circumstances there was no medical negligence on the part of the treating doctors/opposite parties No.1 and 2 in view of law laid down by Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab (2005) 6 SCC 1, while following test laid down in Bolam V. Friern Hospital Management Committee (1957) 1 WLR 582. The relevant observations read as under: -

 “(1) Negligence is the breach of a duty caused 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (decided by Justice G.P. Singh), referred to hereinabove, holds good Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’, breach and ‘resulting damage’.

(2)     …A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence……

(3)     A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.”

11.    Hon’ble Supreme Court in Jacob Mathew vs. State of Punjab (Supra) held as under:-

“A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This all what the person approaching the professional can expect.” 

 

12.    The judgment in Rajiv Gandhi Cancer Institute and Research Centre & Others versus Lt. Col. (Retd.) Zile Singh Dahiya, 2014(3) CLT 309 (N.C.), relied upon by complainant/appellant is not applicable to the present case because in that case the disease of cancer was diagnosed in August, 1999 and the treating doctors had given treatment without proper tests.  The patient died in February, 2001. There was delay in diagnosis and treatment to the patient. The failure to provide proper diagnosis and treatment to the patient amounted to medical negligence. In the case in hand, the patient was diagnosed as a patient of appendicitis within two days and she was referred to another hospital for better treatment but the patient and her attendants delayed it. There was no negligence or deficiency on the part of the treating doctors. 

13.    In view of the above, this Commission does not find any illegality in the impugned order. No case for interference is made out. Hence, the appeal is dismissed.

 

Announced 06.01.1016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL