Dr.Syed Faizal V/S Ramshiya - Consumer Court Case

Kerala

Palakkad

CC/54/2016

Ramshiya - Complainant(s)

Versus

Dr.Syed Faizal - Opp.Party(s)

17 Apr 2018

ORDER

CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Near District Panchayath Office, Palakkad - 678 001, Kerala

Complaint Case No. CC/54/2016

( Date of Filing : 15 Apr 2016 )

1. Ramshiya

W/o.Shihabudheen, Alsafa Manzil, Maruthoor Post, Ongavur, Pattambi Taluk, Palakkad - 679306

Palakkad

Kerala

...........Complainant(s)

Versus

1. Dr.Syed Faizal

Surgeon, Sevana Hospital and Research Centre Pvt.Ltd., S.H.22, Kalladipatta, Pattambi, Palakkad - 679313

Palakkad

Kerala

2. Sevana Hospital and Research Centre Pvt.Ltd.

S.H.22, Kalladipatta, Pattambi, Palakkad - 679313 (Rep.by its Managing Director)

Palakkad

Kerala

............Opp.Party(s)

BEFORE:
	HON'BLE MRS. Shiny.P.R. PRESIDENT
	HON'BLE MRS. Suma.K.P MEMBER
	HON'BLE MR. V.P.Anantha Narayanan MEMBER

For the Complainant:

For the Opp. Party:

Dated : 17 Apr 2018

Final Order / Judgement

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 17^th day of April 2018

Present : Smt.Shiny.P.R. President

: Smt.Suma.K.P. Member Date of filing: 15/04/2016

: Sri.V.P.Anantha Narayanan, Member

(C.C.No.54/2016)

Ramshiya,

W/o Shihabudheen,

Alsafa Manzil,

Maruthoor P.O,

Ongavur,

Pattambi Taluk,

Palakkad – 679 306. - Complainant

(By Adv.B.Ravikumar)

V/s

1. Dr.Syed Faizal, - Opposite parties

Surgeon, Sevana Hospital and Research Centre Pvt, Ltd,

S.H.22, Kalladipatta,

Pattambi,

Palakkad – 679 313.

2. Sevana Hospital and Research Centre Pvt, Ltd,

S.H.22, Kalladipatta,

Pattambi,

Palakkad – 679 313.

Represented by its Managing Director.

(By Adv.V.K.Venugopalan)

O R D E R

By Smt.Suma.K.P. Member

The case of the complainant is that, she felt severe stomach pain and went to the 2^nd opposite party for treatment on 13.11.2015. She was treated by the hospital by giving some medicines and review date was fixed as 18.11.2015. On 18.11.2015 doctor at Sevana Hospital, Pattambi conducted some tests and on 21.11.2015 she was treated by Dr.George.K.S, Gastroenterologist. On 03.12.2015 and 04.12.2015 also she was treated at 2^nd opposite party hospital. On 05.12.2015 complainant felt unbearable pain in stomach along with several other difficulties and symptoms. Since the treatment at Sevana Hospital was not satisfactory she was taken to MES Medical College, Perinthalmanna and was treated by Dr.Rooby. He advised USG of abdomen and diagnosed to have complaint of gallstone. According to her the report revealed acute chronic calculous cholecystitis; impacted calculous at GB neck and CBD not dilated. No IHB are dilation. Doctor suggested immediate surgery to remove the gall bladder. Since the surgeon concerned was on leave in EMS College Hospital, the complainant was advised to go to some other hospital. The complainant immediately approached 2^nd opposite party and he treated her. Surgery was advised. Her husband requested for a key-hole surgery. But according to doctor open surgery was necessary. Surgery was done on 05.12.2015 and complainant was discharged on 11.12.2015. The doctor had informed complainant’s husband that the gall bladder was removed. She did attend for review and follow up treatment on 16.12.2015, 08.01.2016, 15.01.2016, 27.11.2016 etc. Afterwards, the complainant developed the very same symptom as before the surgery. On 28.01.2016 Gastroenterologist Dr.Manivarma treated the complainant in EMS Co-operative Hospital. Ultra sound scanning, liver function test, and USG abdomen was conducted. It was revealed that she had gallstone of size 13 mm in the gall bladder neck. The complainant got shocked to know that her gall bladder was not removed in the surgery conducted on 05.12.2015. She approached Jubillee Mission Medical College, Thrissur on 08.02.2016, they confirmed the findings and surgery was advised. On 17.02.2016 she got admitted and laparoscopic surgery was done on 20.02.2016, were by cholecystectomy was done. She was discharged on 22.02.2016. She alleges defective treatment by 1^st opposite party. According to her, the treatment at opposite party 2 hospital extracted an amount of Rs.1,00,000/- from her and her husband had to sell his temp van. The total expenses incurred at Jubillee Mission Medical College was only Rs.30,000/-. She alleges loss of Rs.1,00,000/- because of defective treatment and claims Rs.4,00,000/- for it and Rs.5,00,000/- for mental agony and Rs.1,00,000/- spent for defective treatment. An amount of Rs.10,00,000/- is claimed as compensation.

Opposite parties entered appearance upon notice from the Forum and filed version contending the following.

The complaint made against him is false and not maintainable in law or facts. It is ill framed, ill advised and filed solely for the undue financial advantage of the complainant. According to 1^st opposite party complainant consulted him on 05.12.2015 at around 4 pm with complaint of severe abdominal pain of one day duration. She had severe upper abdominal pain in the right upper quadrant with associated nausea and vomiting. As per history she was treated at MES Medical College Hospital and was diagnosed to have acute calculous cholecystitis and there she was managed with analgesics. Since there was no relief with medicines she was advised emergency surgery at MES Medical College Hospital. The complainant had undergone all necessary investigations for surgery including an ultrasound scanning at MES which was suggestive of calculous cholecystitis. As per treatment records in the 2^nd opposite party hospital the complainant was on treatment for H-PYLORI positive gastritis in consultation with the visiting gastroenterologist in the 2^nd opposite party hospital and had history of treatment previously in the hospital for various other problems as well. When the complainant reported to the 1^st opposite party’s OPD on 05.12.2015 she had been suffering from severe pain and on clinical side she was febrile and her vitals were stable. She also had tenderness in the right upper quadrant of abdomen. On the basis of clinical symptoms and investigation findings, the 1^st opposite party had diagnosed her condition as due to acute cholecystitis which was a surgical emergency condition. The need for emergency surgery was explained to the complainant and her husband and the 1^st opposite party had detailed discussion with the complainant regarding the disease, its surgical management and also the risk factors involved in the procedure. It was specifically informed the complainant and her relatives that in acute cholecystitis, cholecystectomy (excision of gall bladder) is required but if it is not possible due to distorted anatomy due to inflammatory changes of the gall bladder, it should be drained as an emergency measure by performing cholecystostomy and cholecystectomy should be performed at a later stage. She was well explained the fact that in a badly inflamed and enlarged gall bladder cholecystostomy is the required emergency treatment procedure and after fully aware of the pros and cons of the emergency surgical treatment the complainant and her husband voluntarily agreed and gave their written informed consent. It is pertinent to note that the consent is specifically for cholecystostomy. After doing pre-operative anesthetic work up, the case was posted for emergency cholecystostomy. Under all aspetic care and precautions the 1^st opposite party conducted an open cholecystostomy procedure for the complainant under general anesthesia on 05.12.2015. Intra operatively the gall bladder was found enlarged, thickened and grossly dilated. Pus and bile with few calculi drained and the procedure was uneventful. Post operatively the 1^st opposite party informed the bystanders regarding the intra operative findings of badly inflamed, adherent and enlarged gall bladder and informed the fact that only the emergency procedure cholecystostomy was performed as an emergency life saving procedure and that she might require another surgery later on. Later the complainant was also informed that she underwent emergency drainage procedure and that her gall bladder was not removed. The calculi removed during cholecystostomy were also shown to the patient. Post operatively the complainant got relief of symptoms and she remained stable. On the third post operative day she developed right parotitis and she had reported a recent history of parotitis in her family for which an ultrasound scan was taken and she was treated symptomatically. She was perfectly fine and was discharged on 11.12.2015. She was given discharge summary documenting that the 1^st opposite party had performed cholecystostomy only, and that she might have required a surgery in future. Post operatively the complainant came up for review on 16.12.2015 and her sutures were removed on the date. She remained asymptomatic and perfectly alright. The complainant again came up for a check up on 08.01.2016 in the hospital with reported complaint of abdominal pain and she was symptomatically managed and advised review in the surgery OPD. She reported to the OPD on 15.01.2016 with complaint of abdominal discomfort. On examination the complainant was found clinically well and she was advised review with a gastroenterologist. The complainant again reported to the OPD on 27.01.2016 with complaint of abdominal pain. Her clinical findings were suggestive of cholecystitis and she was advised ultrasononogram and investigations and she was administrated. analgesics. But the complainant did not wait for the USG examination and left the hospital as she got relief of symptoms. Thereafter the complainant did not turn up to consult the 1^st opposite party and lost further follow up. In the treatment of the complainant the 1^st opposite party had exercised reasonable degree of skill and care and cholecystostomy was the proper emergency surgical treatment and accepted line of management expected from a surgeon in the set up of a peripheral hospital. In the light of the above stated facts there was absolutely no negligence or deficiency in service on the part of the 1^st opposite party and he is not liable to compensate the complainant. The complainant’s first consultation with the first opposite party was on 05.12.2015 after being investigated and treated at MES Medical College Hospital. The treatment description in the complaint prior to the said consultation date are not pertaining to the 1^st opposite party and hence not admitted. The averment stated in para 4 of the complaint that after advising immediate surgery at MES Medical College Hospital the complainant was advised to approach some other hospital stating that the surgeon was on leave is hardly believable since the said institution being a post graduate teaching hospital with many facilities and post graduates, there can never be an issue of ‘surgeon on leave’ and sending patients to other centre on that ground. This shows that the entire facts regarding treatment are twisted by the complainant to put up a frivolous case for undue financial gain against the opposite parties. The complainant’s husband never requested for key-hole surgery as alleged. The opposite party did not reveal at any moment that the gall bladder was removed. It is clearly documented that the only cholecystostomy was conducted and documents handed over to the patient. The further treatment at EMS Hospital and Jubilee Mission Hospital are not known to the opposite party. The amount shown as expended by the complainant for her treatment is not correct. The complaint is filed distorting facts and alleging falsity against the documents in their possession.

Complainant filed application as IA 283/2016 to cause production of documents by opposite parties. Opposite parties produce the case sheet as per the orders in IA. Complainant filed chief affidavit along with original documents. Opposite party also filed their chief affidavit. Opposite party also filed application as IA 453/2016 seeking permission to cross examine the complainant. IA was allowed and complainant was cross examined as PW1. Exts.A1 to A12 was marked from the part of the complainant Ext.X1 series was also marked. Complainant filed another application as IA 17/2017 for cause production of documents from the part of the opposite parties. 2^nd opposite party filed documents. Complainant filed additional affidavit and Ext.X2 was marked. Complainant also filed another application of cross examination of opposite party. 1^st opposite party filed additional documents along with additional affidavit. Exts.B1 and B2 was marked from the side of the opposite parties. 1^st opposite party was cross examined as DW1. Complainant filed another application as IA 260/2017 to reopen the evidence and IA 261/2017 to accept the documents. Applications was allowed and Exts.A13 to A67 was marked from the side of the complainant. Evidence was closed and the matter was heard.

The following issues that arise for consideration are.

Whether there is any negligence on the part of the 1^st opposite party
Whether there is any deficiency of service from the part of opposite parties?
If so, what are the relief and cost?

Issues No.1, 2 & 3

The complainant also alleges that being a consumer of the 2^nd opposite party they are bound to give the complainant/patient, proper, effective and state of the art treatment with at due professional skill competence, diligence care and caution. The 1^st opposite party had made the complainant and her husband believe that the gall bladder was removed in the surgery conducted on 05.12.2015. But this was not done as seen from the report of the EMS Hospital and Jubilee Mission Medical College Hospital. He further submits that the treatment of the opposite parties is deficient, defective, ineffective and not upto the minimum standards reasonably expected from a medical practitioner, doctor or hospital. As a result of the defective treatment, the complainant has sustained a monetary loss to the extent of Rs.1,00,000/-.

The 1^st opposite party who had treated the complainant is attached to the 2^nd opposite party’s hospital. The 1^st opposite party had made the complainant and her husband believe that the gall bladder was removed in the surgery conducted on 05.12.2015. But this was not done as seen from the reports of the EMS Hospital and the Jubilee Mission Medical College Hospital. The 2^nd opposite party had extracted an amount in excess of Rs.1,00,000/- from the complainant, for the defective treatment of the complainant and forced an open surgery, when only a laparoscopic surgery was warranted. The treatment given at the hospital of the 2^nd opposite party was insufficient, defective, deficient and not up to the professional standards expected from a qualified doctor or hospital. As a result of sheer medical negligence, wanton professional incompetence and/or willful defective treatment, devoid of all ethical standards, with an eye to extract more money, the complainant had to suffer severe trauma and mental pain for about 2 months, apart from the heavy monetary loss to the tune of Rs.1,00,000/- towards the treatment which was rendered redundant and waste. The 1^st opposite party did not remove the gall bladder in the surgery. Further, of the two stones in the gall bladder as revealed in the investigations, only one gall stone was seen removed in the surgery. This speaks volumes about the substandard skills and incompetence, not expected of a qualified medical professional.

The counsel for the opposite party submits that the need for emergency surgery was explained to the complainant and her husband and the 1^st opposite party had detailed discussion with the complainant regarding the disease, its surgical management and also the risk factors involved in the procedure. It was specifically informed to the complainant and her relatives, that in acute cholecystitis, cholecystectomy (excision of gall bladder) is required but, if it is not possible due to distorted anatomy due to inflammatory changes of he gall bladder, it should be drained as an emergency measure by performing cholecystostomy and cholecystectomy should be performed at a later stage, she was well explained of the fact that in a badly inflamed and enlarged gall bladder cholecystostomy is the required emergency treatment procedure and after being fully aware of the pros and cons of the emergency surgical treatment, the complainant and her husband voluntarily agreed and gave their written informed consent. It is pertinent to note that the consent is specifically for cholecystostomy. She was also given discharge summary documenting that the 1^st opposite party had performed cholecystostomy only and that she might have required a surgery in future. The opposite party had not revealed at any moment that the gall bladder was removed. It is clearly documented that the only cholecystostomy was conducted and documents were handed over to the complainant.

The documents produced are admitted by both sides. The case of the 1^st opposite party is that it was a surgical emergency and the patient was diagnosed to have chronic cholecystitis in EMS Memorial Co-operative Hospital and was advised surgery immediately. She left the hospital at noon on the same day and on the way to Jubillee Mission Hospital, her condition became worst and got admitted in nearby Sevana Hospital. During cross examination she had also deposed (in page No.2) 05.12.2015 \v \mev aWn¡mWv tkh\ Bip]{XnbnÂ hcp¶Xv. Fw.C.Fkv saUn¡Â tImtfPnÂ \n¶v D¨¡v tijamWv UnkvNmÀPv sNbvXXv Fw.C.Fkv saUn¡Â tImtfPnÂ Hcp Znhks¯, A©mw XobXn am{XamWv NnInÕbnÂ Dmbncp¶Xv. AXn\p ap¼v Fw.C.Fkv saUn¡Â tImtfPnÂ Cu Bhiy¯n\v {Soäv sNbvXn«nÃ. Fw.C.Fkv saUn¡Â tImtfPnÂ \n¶v Hcp C.kn.Pn FSp¯n«pmbncp¶p. AXnsâ tcJIÄ Ext.A4 Bbn lmPcm¡nbn«pv. em_v dnt¸mÀ«v Ext.A7 Bbn lmPcm¡nbn«pv. s]bn³ A[nIambXpsImmWv tkh\ Bip]{XnbnÂ t]mbXv. XrÈqÀ Pq_nen Bip]{XnbnÂ t]mIphm\mbncp¶p Dt±iw sabn³ {]iv\w ss]kbmbncp¶p. Fw.C.Fkv saUn¡Â tImtfPnÂ \n¶v UnkvNmÀÖv hm§n XrÈqÀ Pq_nen Bip]{XnbnÂ t]mIphm\mbncp¶p Dt±in¨Xv. AXymk¶ \nebnÂ BbXpsImmWv tkh\ Bip]{XnbnÂ t]mbXv. It is pertinent to note that even according to the complainant it was a life saving operation and records indicates her condition as worst, and she could not reach Jubilee Mission Hospital from MES Medical College. The opposite party 1 has admitted in cross examination that Hcp FaÀP³kn kÀPdn sN¿Ww F¶v F\n¡v tXm¶n. cholecystectomy ¡v I¬kâv hm§n¨n«nÃ. Cu t]jyâv hcpt¼mÄ Xs¶ Hcp FaÀP³kn kÀÖdn thWsa¶v tXm¶nbXp sImWv cholecystostomy kÀÖdn sN¿Wsa¶v tXm¶n. t]jyâv h¶t¸mÄ ITn\amb thZ\ Dmbncp¶XpsImp IqSnbmWv Cu kÀÖdn sN¿phm³ Xocpam\n¨Xv. The opposite party has submitted that the complainant’s husband had never demanded for conducting a key-hole surgery. Herein, because of the blockage of the gall bladder, there was puzz formation and the gall bladder which situates in touch with the lever in an adhesive stage with lever, if removed at that stage may cause damage to the lever. As such opposite party 1 had preferred open surgery to save the life of the patient.

Moreover the complainant had not produced any expert evidence regarding this aspect to prove that there was negligence or deficiency of service on the part of the 1^st opposite party to prove that the procedure adopted by the 1^st opposite party was wrong. The complainant had failed to prove that there is negligence or deficiency of service on the part of the opposite parties.

When all the above facts are considered the complaint can only be categorized as a mistake and had filed without proper knowledge of the true state of facts. Hence the complaint is dismissed without cost.

Pronounced in the open court on this the 17^th day of April 2018.

Sd/-

Shiny.P.R

President

Sd/-

Suma.K.P

Member

Sd/-

V.P.Anantha Narayanan

Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 - Original USG Abdomen issued by EMS Memorial Co-operative Hospital &

Research Centre, Perinthalmanna to the complainant dated.28.01.2016

Ext.A2 - Original Laboratory Report dated.27.01.2016 of Sevana Hospital and

Research Centre, Pattambi

Ext.A3 - Original Ultra Sound Scan Report dated.08.02.2016 of Jubilee Mission

Medical College Hospital, Thrissur

Ext.A4 - Original USG Abdomen issued by MES Medical College Hospital Department

of Radio Diagnosis to the complainant dated.05.12.15

Ext.A5 - Prescription issued by Jubilee Mission Medical College Hospital, Thrissur

dated.08.02.2016 to the complainant

Ext.A6 - Histo Pathology Report dated.24.02.2016 issued by Jubilee Mission Medical

College Hospital, Thrissur to the complainant

Ext.A7 - Laboratory Report dated.05.12.2015 issued by MES Medical College

Hospital Department of Radio Diagnosis to the complainant

Ext.A8 - Bio Chemistry Result Report dated.28.1.16 issued by MES Medical College

Hospital Department of Radio Diagnosis to the complainant

Ext.A9 - Ultra Sound Scan Report dated.09.12.15 issued by Sevana Hospital and