Haryana

Yamunanagar

CC/388/2010

Mehar Chand - Complainant(s)

Versus

Dr.Parveen Garg - Opp.Party(s)

Y.C.Tyagi

28 Nov 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                    Complaint No.388 of 2010.

                                                                                    Date of institution:26.04.2010.

                                                                                    Date of decision: 28.11.2016.

       Mehar Chand (since deceased) now represented through his legal heirs:-

1. Vinod Kumar son
2. Smt. Krishna Devi widow
3. Rinku Kumar son

      All residents of House No. 20, NalagarhMajra, Ambala Road, Jagadhri, District Yamuna Nagar.

                                                                                                                                                …Complainant.

                                    Versus

1. Dr. Parveen Garg, Rameshwar Dass Memorial Hospital, Near Bus Stand, Bye Pass Road, Jagadhri.
2. Dr. Rajiv Airon, Rameshwardass Memorial Hospital, Near Bus Stand, Bye Pass Road, Jagadhri.
3. The Oriental Insurance Company Ltd. Opposite Madhu Hotel, Yamuna Nagar, through its Branch Manager.

                                                                                                                                      

                                                                                                                                                 …Respondents.

                       

BEFORE          SH. ASHOK KUMAR GARG, PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. Y.C.Tyagi, Advocate, counsel for complainant.   

              Sh. Amit Bansal, Advocate, counsel for respondents’ No. 1& 2.

              Sh. Naveen Kaushal, Advocate, counsel for respondent No.3.

 

ORDER

 

1                      Complainant Mehar  Chand (now deceased) filed the present complaint under section 12 of Consumer Protection Act, 1986 praying therein that respondents (hereinafter respondents to be referred as OPs) be directed to pay Rs. 1,50,000/- on account of financial loss caused to the complainant due to negligence in medical treatment and further to pay compensation as well as litigation expenses. The complainant Sh. Mehar Chand died during the pendency of complaint, so his above noted  LR’s were impleaded vide order dated 15.09.2010.     

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant Mehar Chand (now deceased) approached the OP No.1 on 21.07.2009 for removal of Stones from the Gall Bladder. On 21.07.2009, the complainant deposited a sum of Rs. 6000/- with the hospital of the Op no. 1 & 2 before the laparoscopic operation. Before operation some documents were got signed by the doctor. Immediately after operation, Dr. Rajeev Airon treating Doctor stated that it was a difficult case and was not a case of laparoscopic but he has successfully done it. He also stated that in the CT scan the size of the stone was not clearly visible. The complainant was also informed that there was no problem with the laparoscopic operation and no open surgery was done. The complainant deposited a sum of Rs. 9000/- more after his operation to the OP No.1. The complainant was surprised to find a catheter with the bag attached to the stomach. It was represented by the doctor that the same is for draining out the bile. This raised suspicion in the complainant’s mind. The treating doctors continued proclaiming success of the operation whereas the health of the complainant was deteriorating. After discharged from the hospital on 30.07.2009, complainant could not live well. He could not eat, drink and walk. The complainant suffered a great physical & mental harassment. The complainant was not having relief from the stomach pain from the treatment given by the Ops no.1 & 2. Thereafter, the complainant’s near & dear suggested him to go to P.G.I., Chandigarh. The complainant was brought for treatment in PGI on 11.08.2009 and the complainant remained admitted in P.G.I. Chandigarh from 03.09.2009 to 13.09.2009. The complainant spent huge amount on his treatment/medical bills near about Rs.70,000/- and six(6) injections were also given to the complainant having cost about 10,000/- each. Due to negligence on the part of Ops doctors, the complainant has suffered financial loss as well as mental agony. Hence this complaint.

3.                     Upon notice, OPs No.1 & 2 appeared and filed their written statement jointly by taking some preliminary objections such as complaint is not maintainable; present complaint is false and frivolous; that prior to visit to the hospital of the op no.1, complainant remained under treatment of various Doctors and the said doctors and hospitals have not been impleaded in this case, this Forum has got no jurisdiction to entertain; try the present complaint; OP no.1 Doctor Parveen Garg is well qualified doctor having a degree of MBBS, MD (Medicines) and is having an experience of 21 years and passed out from Govt. College Rohtak and his throughout career is spotless and similarly treating  Dr. Rajiv Airon is highly qualified and his qualification is MBBS, M.S. (General Surgery) FMAS ( Laparoscopic Surgery) having experience of 16 years and remained as Medical Officer in Haryana Civil Medical Services for more than 11 years at different places and conducted so many complicated surgery and his all career is good through out. The respondent doctors treated and operated the complainant with their best skill and gave him best treatment as per the medical norms and ethics and there is no deficiency in service and negligence on the part of treating doctors and On merit, it has been admitted that the patient Mehar Chand (now deceased) came to the hospital of the OP no.1 on 21.07.2009 with history of pain right upper abdomen, off & on for the last 6 months. He was checked by the OP No.2 i.e. Dr. Rajiv Airon who is well known surgeon and is master of his field and having FMAS in Laparoscopic surgery. The B .P. was 130/80 and there was no Dehydration and Jaundice but complainant was having tenderness in the right hypochondrium. The complainant brought with him the C.T. Scan report dated 14.07.2009, in which it was clearly mentioned that there was polypoidalmass of size 2.1 x 1.2 cm. in posterior wall of gall bladder and rest of viscera was normal. As per C.T. Scan report dated 14.07.2009, there was no stone so, the complainant was told that an open surgery will be done and he was advised for admission. Accordingly, conventional cholecystectomy was done on 22.07.2009. Further, it has also been mentioned that the procedure of open surgery was explained to the complainant and he gave his consent and signed the same on 21.07.2009. It has been specifically denied that laparoscopy surgery was advised to the complainant. It is further submitted that after the surgery since the gall bladder was having a polyposis so the same was sent for biopsy to rule out the cancer because in the ultrasonography and C.T.Scan report which the patient brought with him on 21.07.2009, there was no sign of malignancy i.e. cancer. Had there been any such sign in the said report then certainly, the operating doctor would not have conducted the surgery.  In the report of biopsy, it was mentioned that there was a cancer of gall bladder and no stone was found in the biopsy report in the gall bladder. Immediately the patient was told about the report and referred to PGI, Chandigarh with all the reports on 06.08.2009 for opinion and management but he got himself admitted in the PGI Chandigarh on 03.09.2009. During that time, the cancer spread as it has been duly mentioned in the Annexure C-3 at page No.1 in the column of diagnosis “Locally advanced carcinoma gall bladder” meaning thereby that cancer had spread during this period for which the doctor of PGI, Chandigarh conducted another surgery on 04.09.2009 and he was discharged on 11.09.2009 and during that admission patient was given cancer medicine which is also clear from the Annexure C-30. Lastly, it has been mentioned that a false story has been cooked up just to harass and humiliate and extract the money from the Ops doctor and there was no medical negligence or carelessness on the part of the Ops Doctor. As such, the complaint of the complainant is liable to be dismissed.

4.                     Upon notice, OP No.3 the Oriental Insurance Company, being the insurer of both the OPs Doctors, appeared and filed its written statement by taking some preliminary objections beside this on merit it has been admitted that Op no.1 Dr Parveen Garg was insured vide insurance policy bearing no. 261700/48/2009/2173 valid from 09.12.2008 to 08.12.2009 for a sum of Rs. 15,00,000/- and Dr Rajiv Airon was insured vide insurance policy bearing no. 261700/48/2010/1129 valid from 19.07.2009 to 18.07.2010  for an amount of Rs. 10,00,000/- subject to terms and conditions of the policies in question. However, OPs No.1 & 2 had treated the complainant according to best of their ability and according to the proper procedure as per medical norms and denied all the allegations leveled by the complainant and lastly prayed for dismissal of complaint qua OP No.3 Insurance Company.

5.                     In support of case, counsel for the complainant tendered into evidence Affidavit of Vinod Kumar son of late Shri  Mehar Chand as Annexure CX and affidavit of Krishna Devi widow of late Sh. Mehar Chand as Annexure CY and documents as Annexure C-1 to C-54 and closed the evidence on behalf of complainant.

6.                     On the other hand, counsel for OPs No.1 & 2 tendered into evidence affidavit of Dr. Rajeev Airon Medical Officer Rameshwar Dass Memorial Hospital as Annexure RW/A and documents such as Photo copy of Insurance Cover Note as well as insurance policies as Annexure R-1 to R-3, Photo copy of indoor/ treatment record as Annexure R-4 to R-6 and closed the evidence on behalf of OPs No.1 and 2.

7.                     Counsel for the OP No.3 tendered into evidence affidavit of Sh. R.S.Kalra, Divisional Manager, OIC as Annexure RW3/A and documents such as insurance policies as Annexure RW3/A and RW3/B and closed the evidence on behalf of OP No.3.             

8.                     Written arguments filed by counsel for the complainant and we have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

 9.                    Learned counsel for the complainant argued that the OPs No.1 & 2 doctors, before the operation, it was told to the complainant that there were stones in the Gall bladder which were required to be removed by Laparoscopic Surgery and such operation would take only 25-30 minutes. Learned counsel for the complainant further argued that treating doctor Dr. Rajiv Airon immediately after operation stated that it was difficult case and it was not a case of laparoscopic but he has successfully done it and no open surgery was done. Learned counsel for the complainant further argued that the complainant was surprised to find a catheter with the bag attached to the stomach of the complainant and on asking, it was stated that the same is for draining out the bile but this raised suspicion in the complainant’s mind. The OPs continued proclaiming success of the operation whereas the health of the complainant was deteriorating as he could not take any food or liquids and even could not walk.  When the complainant having got no relief from the stomach pain after the operation conducted by the op no.2 then on the advice of near and dears, the complainant was got treatment from PGI Chandigarh, where the operation was again conducted and complainant spent huge amount on his treatment. Learned counsel for the complainant further argued that when as per report of C.T. Scan dated 14.07.2009 there was polypoidalmass of size 2.1 x 1.2 cm. in posterior wall of gall bladder then without getting proper diagnose i.e. without getting biopsy, no open surgery should be conducted by the treating doctor. Even, such type of surgery was not advisable but the treating doctor carelessly and due to reasons best known to him conducted an open conventional cholecystectomy on 22.07.2009 due to which cancer spread into the body of the complainant otherwise it can be managed by getting chemotherapy or radiotherapy. Ld counsel further draw our attention towards discharge card Annexure C-1 and report of biopsy Annexure R-6 and argued that complainant Mehar Chand was referred to PGI on 06.08.2009 whereas the op no.1 doctors received the biopsy report on 24.07.2009 and  during that time, the cancer spread as it has been duly mentioned in the Annexure C-3 at page No.1 in the column of diagnosis “Locally advanced carcinoma gall bladder” meaning thereby that cancer had spread during this period for which the doctor of PGI Chandigarh conducted another surgery on 04.09.2009. Lastly, prayed for acceptance of complaint against the OPs No.1 & 2 as the doctors have carelessly and negligently treated the complainant due to that complainant died later on. Ld. counsel for the complainant draw our attention towards the citation titled as Chandra Shekhar Pandey Versus Salil Chandra (Dr.) & Others, 2011 (2) CLT page 571 wherein it has been held that “Medical Negligence- The doctors and hospital had rendered medical services to the complainant’s wife on receipt of fees and thus the complaint/claim of the complainant is well within the jurisdiction of the consumer Fora”.

 Learned counsel for the complainant further draw our attention towards citation titled as Smt. Gurmit Mahal Versus Chauhan Nursing Home Private Limited and Another, 1998(2) CPC page 337 wherein it has been held that “Medical Negligence- Operation of Gall Bladder- complainant was operated for removal of Gall Bladder by cutting common bile duct resulting in complications and further hospitalization. A sum of Rs. 10,00,000/- was claimed against OP No.1 and 2 for committing medical negligence. It was represented that operation would take only 25 minutes while it took about 4 hours in performance. The doctor alleged to have performed 500/600 operations but actually he had conducted only 5/6 operations- After the operation, a large amount of bile had collected in abdomen- On medical advice of another doctor the complainant had to be admitted in PGI for surgery after spending a lot on treatment OP No.2 had cut the only bile duct known as CBD resulting in bile collection in the stomach-Bye pass had to be done in PGI since CBD had been cut negligently by OP No.2, the doctor- Only cystic duct was required to be cut and not common bile duct in while performing laparoscopic in the process of removal of Gall Bladder- A case of prima facie negligence on the part of doctor OP No.2 stands established for which the doctor OP No.2 as well as the Hospital-OP No.1, both are liable. As per evidence on record complainant held entitled to a sum of Rs. 1,69,300/- as compensation with 15% interest p.a.

                        Learned counsel for the complainant further draw our attention towards the citation titled as NirajAwasth (Dr.) Versus Jagdish Bharti (Deceased through LRs), 2010(3) CLT page 705 (N.C) and case titled as V..Kishan Rao Versus Nikhil Super Specialty Hospital & Another, 2010(2) RCR (Criminal) page 878 (Supreme Court) and case titled as Nizam’s Institute of Medical Sciences Versus Prasanths. Dhananka and others 2009(6) SCC.

10.                   On the other hand, counsel for OPs No.1& 2 argued that the complainant brought with him the C.T. Scan report dated 14.07.2009, in which it was clearly mentioned that there was polypoidalmass of size 2.1 x 1.2 cm. in posterior wall of gall bladder and rest of viscera was normal. As per C.T. Scan report dated 14.07.2009, there was no stone so, the complainant was told that an open surgery will be done and he was advised for admission. Accordingly, conventional cholecystectomy was done on 22.07.2009. Further, it is also argued that the procedure of open surgery was explained to the complainant and he gave his consent and signed the same on 21.07.2009. It is further argued that after the surgery since the gall bladder was having a polyposis, so the same was sent for biopsy to rule out the cancer because in the ultrasonography and C.T.Scan report which the patient brought with him on 21.07.2009, there was no sign of malignancy i.e. cancer. Had there been any such sign in the said report then certainly, the operating doctor would not have conducted the surgery.  In the report of biopsy, it was mentioned that there was a cancer of gall bladder and no stone was found in the gall bladder. Immediately the patient was told about the report and referred to PGI Chandigarh with all the reports on 06.08.2009 for opinion and management but he got himself admitted in the PGI Chandigarh on 03.09.2009. During that time, the cancer spread as it has been duly mentioned in the Annexure C-3 at page No.1 in the column of diagnosis “Locally advanced carcinoma gall bladder” meaning thereby that patient was himself negligent and careless who visited the PGI after 25-26 days. It is also argued that the patient was properly examined, investigated, diagnosed and treated by ops doctors as per prescribed norms of medical practice which are mentioned in the text books and journals of the subject concerned without deviating from the normal prescribed line of treatment and even the complainant has also failed to explain as to how the treating doctor was negligent, at which/what stage of treatment? What the OP was supposed to do which he did not do? What the OP was not supposed to do, what he did. What were other lines of treatment etc.? and lastly prayed for dismissal of the complaint and drawn the attention of this Forum towards the case law delivered by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Malnad Hospital and Institute of oncology super specialty surgical centre and others Versus H.C. Eranna, 2013 CJ page 133 (N.C.) wherein it has been held that Consumer Protection Act 1986- Section 13(7) –Civil Procedure Code, 1908- Order 22- Medical Services- Medical negligence- Death of victim- complainant- Complainant having died during pendency of complaint proceedings, right to sue petitioners for personal injury suffered by complainant also did not survive- Complaints dismissed and also referred the case law titled as G. Ravender Rao & Others Versus Ghulam Dastagir & Others, 2013 (1) CLT page 594, wherein it has been held that “the appellants, who are well qualified doctors treated the patient as per their best professional judgment and on the basis of diagnostic and clinical tests from a well equipped laboratory-Held, there is no medical negligence or deficiency in service in the treatment of patient.

                        Learned counsel for OPs No.1& 2 further relied upon the judgment delivered by the National Commission in consumer case titled as Ajay Gupta Versus Pradeep Aggarwal (Dr.) & others, IV (2007) CPJ page 64 (NC) wherein it has been held that “Treatment given contrary to established medical norms not proved-Expert evidence or medical literature in support of allegations not produced on record-Complaint dismissed-Appeal against order dismissed. Learned counsel for the OPs No.1 further relied upon the judgment delivered by the Hon’ble Supreme Court in case titled as Kusum Sharma & Others Versus Batra Hospital & Medical Research Centre & Others, 1(2010) CPJ page 29 (SC) wherein it has been held that doctor not guilty of medical negligence as long as they perform their duties and exercise ordinary degree of professional skill and competence-Medical negligence not proved in view of settled principles of medical negligence. No relief entitled. Learned counsel for the OPs No.1 further relied upon the case law titled as  Ramaiah Institute of Cardiology & Others Versus M. PundalikShenoy Since Dead by Lrs. & Others, 2012 (2) CPC Page 603 and case titled as Smt. SujataNath Versus Popular Nursing Home and others, 2011 CJ page 1039 (N.C.). Learned counsel for OPs No.1 further relied upon another case law titled as H.R. Megh Versus Dr. JasjitChhachhi Nursing Home and others, 2011(2) CPC page 604 (NC.)wherein it has been held that“Medical negligence – Wrong treatment of cancer- Wife of complainant No.1 suffered from excessive virginal bleeding during menstruation period- Surgery was conducted by OP No.2 removed the uterus and right tube- Cancer was detected at later stage- But patient could not be saved- It was alleged that Op No.2 had not done Biopsy to determine more accurately condition of uterus and cervix before undertaking abdominal hysterectomy- As per conclusion of medical Board there was probability that deceased had developed cancer sometimes before conducting the surgery- Failure to detect negligence during medical examination does not constitute medical negligence on the part of OP- relief declined”.

11.                   We have heard both the counsel and have gone through the case laws referred above.  In the present case, going by the allegations of the negligence as put forth by the complainant, the first question which arises for our consideration is as to whether the surgeon had obtained the requisite valid consent either from the complainant or his family members for conducting open cholecystectomy in place of laparoscopic cholecystectomy. According to the complainant, he had not given any consent for open surgery as it was told by the OP No.2 Dr. Airon that he is master in laparoscopic surgery. So, the consent given by him at the time of his admission to the hospital of the OpNo.1 on 21.07.2009 was only for conducting laparoscopic cholecystectomy.  We have perused carefully and minutely the consent letter which is back portion of Annexure R-4 Medical Treatment Chart/ Surgery notes, in this letter nothing has been mentioned in any language except printing matter and signature of the complainant and date 21.07.2009, meaning thereby that the signature of the complainant were obtained on blank printed consent letter even the column High Risk Consent has been left blank.

12                    Now, the question is as to whether the consent i.e. which is back portion of the Annexure R-4 given by the complainant can be taken as a valid consent for conducting the open cholecystectomy procedure. Learned counsel for the complainant has argued that complainant did not give any consent for open cholecystectomy and the consent form singed by him was initially for conducting laparoscopic cholecystectomy only. On the other hand, counsel for the Ops doctor has made an attempt to show that the consent given by the complainant would amount to consent for removal of gall bladder by the procedure of open cholecystectomy as well referring the opening line of the consent form “I give consent for any medical and surgical treatment under any kind of anesthesia at my own risk and will hold the doctors, paramedical staff and hospital in no way responsible.” He argued that complainant would be deemed to have given implied consent for the said procedure authorizing the surgeon “ to perform such additional operation or procedure.”

13.                   We are not prepared to accept the contention of the learned counsel for the ops doctors because the consent form is totally blank except printing matters in English. The consent form is too general in nature and must have been signed by the complainant at the time of admission of the complainant to the nursing home for the purpose of overall medical treatment which the complainant was to receive at the said Nursing Home. What amounts to a valid consent for conducting such procedure has been considered by the Apex Court in its decision rendered in the case of Sumitra Kohli Versus Dr. Prabha Manchanda and another , 2008(2) Supreme Court Cases wherein principles relating to consent were laid down as under:-

                        We may now summarize Principles relating to consent as follows:

1. A doctor has to seek and secure the consent of the patient before commencing a ‘treatment’ (the term ‘treatment’ includes surgery also). The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what is consenting to.
2. The ‘adequate information’ to be furnished by the doctor (or a member of his team) who treats the patient should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment as to whether he should submit himself to the particular treatment or not. This means that the Doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c)  an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment.  Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
3. Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial  to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.
4. There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.
5. The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular filed. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment.

14.                   As per law laid down in above noted case law, consent so obtained should be real and valid. Unauthorized, additional surgery may be beneficial to the patient or would save considerable time, expense pain and suffering, no grounds of defense in the action in tort for negligence, assault and battery. Correctness or appropriateness of the treatment procedure does not make the treatment legal in the absence of consent for the treatment. In the above noted circumstances treating doctor has performed conventional cholecystectomy which was an unauthorized invasion and interference with complainant’s body which amounted to a tortuous act of assault and battery and deficiency in service on the part of treating doctor.

15.                   The real consent concept has herein been preferred over the reasonably prudent patient test having regard to the ground realities in medical and health care in India. But if medical practitioners and provide hospitals become more and more commercialize and if there is a corresponding increasing in the awareness of patient rights among the public, inevitably a day may come when it may be shifted towards Canterbury but not for the present. Bearing in mind the above principle and having regard to the facts and circumstances of the present case and material brought on record, we have no hesitation in holding that in the present case, the surgeon failed to obtain the requisite consent from the complainant or his family members for the procedure for open cholecystectomy.  The whole case of the complainant is that Ops Doctors were showing themselves to be a skill full doctors having degree of laparoscopic surgery and on perusal of the report dated 06.07.2009 in which 20x16mm Mass small calculi seen in gall bladder (Annexure C-37), the complainant was referred by the OP o.1 & 2 doctors to Chandigarh for C.T.Scan which is duly evident from Annexure C-40 and after perusal of C.T.Scan report dated 14.07.2009 (Annexure C-41) in which it was shown that there is enhancing polypoidal mass measuring 2.1 x 1.2 cm. size along the posterior wall of body of gall bladder, it was planned by the Ops Doctors that there are stone in the gall bladder and the same will be removed by them after a minor laparoscopic operation within ½ hours. Taking into consideration the above noted facts, the Ops doctors had obtained only the general consent from the complainant. If the Ops doctors were having any plan to conduct the open surgery then they must have obtained specific consent from the complainant but they did not do so. As the back portion of the treatment chart (Annexure R-4) i.e. consent form is totally blank except signature of the complainant.    

16.                   Learned counsel for the Ops doctor has further argued that such a failure to obtain the specific consent of the complainant for performing the open cholecystectomy does not amount to negligence on the part of the surgeon because in the given circumstances of the present case, it was not possible to perform the laparoscopic cholecystectomy  addition etc. and hence, the surgeon had no other option except to perform the open cholecystectomy as he could not leave the patient in the lurch. In this connection, we may simply observe that the complainant was booked for an elective surgery for removal of stone by a laparoscopic procedure and if the doctor found that he was unable to perform the said procedure for certain            internal medical condition of the patient, he should not have proceeded to conduct the open cholecystectomy without obtaining the consent of the complainant. It is not the case of the Ops doctor that he restored to the procedure of open cholecystectomy as a life saving measure because the life of the patient was threatened. The case law referred by the counsel for the Ops titled as F. D’souza Versus Mohd Ishfaq, Civil Appeal No. 3441/2002 and case titled as Jacob Mathew Versus State of Pujab and another, AIR 2005 Supreme Court 3180 and other cases has added sub more dimension to the concept as to what amounts to medical negligence and how it can be established.

17.                     Further, from the perusal of C.T. Scan report dated 14.07.2009 (Annexure C-41), it was clear that there was enhancing polypoidal mass in the gall bladder then the operating doctor would not have conducted the surgery without getting the biopsy report but despite that the treating doctor conducted the open surgery upon the complainant.  In such type of cases the doctors have to obtain report of laboratory test much prior to operation, because in case of cancer, the possibility of its spreading in the body is highly probable. But in the present case when there was apprehension of tumor as indicated in the report dated 14.07.2009, the doctors/ Ops No.1 & 2 did not show due diligence, rather conducted the operation negligently. Even, this facts has been admitted by the ops Doctor in their written statement that ‘’Had there been any such sign in the said report then certainly, the operating doctor would not have conducted the surgery’’.

18.                   Learned counsel for the complainant has then further argued that even after discharge from the hospital, complainant continued to suffer with one or the other problems so much so that he had continuous pain in his abdomen and developed some complications for which he again consulted the surgeon at PGI, Chandigarh and was again operated on 04.09.2009 and discharged from the PGI on 11.09.2009. The contents of the case law titled as Chandra Shekhar Pandey Versus Salil Chandra (Dr. )  & Others, 2011 (2) CLT page 571 are fully applicable to the facts of the present case wherein it has been held that   “Medical negligence- Compensation- Surgery for removal of stone from gall bladder- The same deferred due to the gall bladder engulfed by cancer and secondaries of cancer and only a tissue for biopsy was taken out- Though there is no specialist for treatment of cancer the patient kept in the hospital without any treatment for eight days till the report of biopsy came and next day the patient died- Keeping the patient for eight days without treatment was a serious kind of medical negligence and deficiency in service that can be attributed to doctor and the hospital both- the hospital management cannot wash off its hands simply by saying that doctor is a visiting doctor and it is not responsible for his misdeeds- In all complainant’s claim for Rs. 2,55,000/- both against doctor and hospital allowed. Further the contents of case law titled as  Smt. Gurmit Mahal Versus Chauhan Nursing Home Private Limited and Another, 1998(2) CPC page 337, V..Kishan Rao Versus Nikhil Super Specialty Hospital & Another, 2010(2) RCR(Criminal) page 878 (Supreme Court), and Patel Hospital Private Ltd. Versus Pawan Kumar and another, 2009(4) C.L.T. page 78 are fully applicable to the facts of the present case. The facts of case law referred by the counsel for the OPs are not disputed but not helpful in the present case.   

19.                   Having considered the matter in its entirety, we are of the considered opinion that there is a negligence on the part of the OP No.2 doctor i.e. treating doctor on account of his failure to obtain the valid consent from the complainant for conducting the open cholecystectomy and also not giving the requisite care and attention to the complainant and conducted open cholecystectomy without getting proper diagnose which had developed post procedure for which complainant consulted him.  However, no negligence has been established on the part of nursing home in giving the treatment to the complainant. The surgeon alone must compensate the complainant for the said negligence in treatment of the complainant.

20.                   Having held that there was carelessness and negligence on the part of the surgeon i.e. OP No.2 Doctor in giving the treatment to the complainant, the ultimate question is as to what should be the reasonable compensation to which the complainants are entitled in the present case. What is meaning by compensation within the meaning of section 14 of the Consumer Protection Act 1986 has been considered and answered by the Hon’ble Supreme Court in case of Gaziabad Development Authority Versus Balbir Singh 2004 Volume 5 Supreme Court Case page 65 wherein it has been defined in the legal sense that it may constitute actual loss or expected loss and may extent to physical, mental or even emotional suffering and insult injury and loss, thus the Forum in the act is entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him. In the present case, the complainant has claimed a sum of Rs. 1,50,000//- as financial loss and Rs. 2,00,000/- on account of mental agony, harassment and torture, pain and suffering etc. and Rs. 6000/- as legal expenses but no cogent evidence has been placed on file except to file some medical bills including hospital charges approximately amount of Rs. 60,000-70,000/-(Annexure C-1 to C-53). . So, we have no option except to grant compensation by way of guesswork. We are of the view that a lump sum compensation of Rs.1,00,000/- ( one lac) would be adequate to meet the end of justice in this case.

21.                   Resultantly, in the circumstances noted above, we partly allow the complaint of complainant and direct the OPs No. 2 & 3 to pay a lump sum of Rs. 1,00,000/-( one lac only) jointly and severally to the LRs of complainant in equal shares and further to pay Rs. 10,000/- as litigation expenses. It is made clear that as the OP No.2 was insured with the Op No.3, so, the OP No.3 Oriental Insurance Company will pay the awarded amount being insurer of the OP No.2 within a period of 30 days failing which complainant shall be entitled to recover interest at the rate of 6% per annum for the defaulting period. Complaint qua OP No.1 is hereby dismissed as no deficiency in service proves against the OP No.1. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 28.11.2016.

 

                                                                                    (ASHOK KUMAR GARG)

                                                                                     PRESIDENT

                                                                                     DCDRF, Yamuna Nagar.

 

 

                                                                                    (S.C.SHARMA)

                                                                               MEMBER