Delhi

West Delhi

CC/01/256

R.K CHAUDHARY - Complainant(s)

Versus

ESI - Opp.Party(s)

08 Nov 2016

ORDER

CONSUMER DISPUTES REDRESSAL FORUM (WEST)

GOVERNMENT OF NCT OF DELHI

150-151, Community Centre, C-Block, JanakPuri, New Delhi – 110058

 

                                                                                                             Date of institution.14.3.2001

CCNO-256/01                                                             Date of Order:8.11.2016

In the matter of

R.K. Chaudhary,

House No.74/8, Udyan Pana,

Narela, Delhi-40.                                                                                                    COMPLAINANT

VERSUS

Director General,

Employees State Insurance Corporation,

(ESI Corporation),

4 Kotla Road, New Delhi-02.                                                                               OPPOSITE PARTY-1

 

ESI Hospital,

Basaidarapur Ring Road,

New Delhi-15.                                                                                                         OPPOSITE PARTY-2

 

Dr. V.K. Saang,

Surgical Surgeon, Unit 2,

ESI Hospital, Basaidarapur,

Ring Road, New Delhi-15.                                                                                    OPPOSITE PARTY-3

 

Dr. John,

Surgical Surgeon, ESI Hospital,

Basaidarapur, Ring Road,

Nw Delhi-15.                                                                                                           OPPOSITE PARTY-4

 

ORDER

R.S. BAGRI,PRESIDENT

 

            Briefly the case of the complainant is that he was suffering from ailment of stone in gallbladder and on the advice of Dr. V.K. Saang, Opposite Party-3, was admitted in ESI Hospital, Opposite Party-2, on 29.6.2000. He was operated by Dr. John, Opposite Party-4 ,for removal of gallbladder.  The Opposite Party-4 while removing the gallbladder acted most negligently, inaptly and in a casual manner without application of mind, causing serious damage to the duct connecting the gallbladder with liver.  Therefore, the Opposite Party-3 and Opposite Party-4 referred the complainant to G.B. Pant Hospital.  Where he was diagnosed   that the duct connecting the gallbladder with liver was damaged during operation.  Therefore, the doctor at G.B. Pant Hospital inserted artificial duct through diversified route.  

 

            The complainant also  developed neurological problem, therefore, on 23.9.2002 he was referred to neurology department.  The neurological problem of the complainant  persisted and increased therefore,he got himself checked in Rajiv Gandhi Cancer Institute & Research Center, Rohini 

 

            The complainant suffered due to carelessness, negligence and mishandling by Opposite Party 3 & 4.  He has become handicapped and crippled.  The ailment of the complainant is beyond treatment and his disability will continue lifelong.  The complainant is unable to walk, perform his daily persuits and work.  There is medical  negligence in treatment and service on the part of Opposite Parties. 

 

            Therefore, the complainant has filed the present complaint for directions to the Opposite Parties to pay Rs.10,000,00/- as compensation for pain and sufferings, Rs.6,000,00/- as compensation on account of loss of employment, Rs.3,000,00/- for mental agony and  harassment  and Rs.50,000/- as legal expenses.  

 

            The  Opposite Parties in joint reply contested the complaint while raiasing preliminary objections of jurisdiction,verification of the complaint,concealment of true and material facts, complainant is not a consumer and the complaint is bad for nonjoinder and misjoinder of parties. 

 

            However, on merits, ailment of complainant, his admission in Opposite Party-2 hospital and operation by Opposite Party-4 for removal of  gallbladder is admitted.  But the Opposite Parties asserted that the Opposite Parties acted in most diligent manner as per the prescribed medical standards.  There is no negligence or deficiency in service on the part of any of the Opposite Parties  and prayed for dismissal of the complaint.  

 

            When the parties were asked to lead evidence by way of affidavit, the complainant  R.K. Chaudhary filed his  affidavit dated  19.11.07.  The complainant  also placed on record treatment papers annexures 1 to 18.  The Opposite Parties have tendered affidavit of Dr. Anita Arora, dated 23.4.08, wherein she has once again reiterated the stand taken in the reply and asserted that the operation was done with utmost care and due caution as per prescribed medical standards.  She further asserted that the case was never beyond the control of Opposite Party-2 and G.B. Pant Hospital never diagnosed the duct connecting the gallbladder with liver was damaged during the operation. She asserted that the complainant was referred to the Department of Gastroenterology at G.B. Pant Hospital for endoscopic diagnostic imaging and intervention as this facility was not available with Opposite Party-2.  Therefore, there is no medical  negligence  or deficiency in service on the part of Opposite Parties.  The Opposite Parties also placed on record treatment papers of complainant exhibit EX RW1-EXRW30. 

 

            The parties have also submitted written arguments.  We have heard complainant in person and counsel for Opposite Parties and gone through material placed on record carefully and thoroughly. 

 

            From the complaint, reply, affidavits and documents produced by both the sides, it is admitted case of the parties that the complainant was operated for removal of gallbladder by Opposite Party-4. The allegations of the complainant are that the Opposite Party-4 while removing the gallbladder acted most negligently, inaptly and in a casual manner without application of mind, causing serious damage to the duct connecting the gallbladder with liver.  Hence, there is medical negligence and deficiency in service on the part of Opposite Parties.  Whereas the case of the Opposite Parties is that the operation conducted by Opposite Party-4 was done with utmost care, full application of mind as per prescribed  medical standards and keeping in view highest interst of the complainant. 

 

            The Forum called opinion of medical expert board of DDU Hospital, Delhi.  The medical expert board gave opinion dated  14.10.13.  The concluding part of the medical  expert board  opinion runs as under:

“1.      Patient had a technically difficult cholecystectomy and injury to the biliary duct is known complication in such cases.  The complication was diagnosed on the operation table and managed by acceptable method of treatment.

2.        He was referred to higher center i.e. G.B. Pant Hospital for ERCP and stent placement, as this facility was not available at ESI Hospital.  

3.        Associated problems of lumber disc prolapse is not because of the gallbladder Operation. 

4.        This is nothing to suggest medical negligence on part of O.Ps. as claimed.”

 

            From the bare reading of the report of medical expert board it is evident that there was no medical  negligence/deficiency in service on the part of treating doctors(Opposite Party 3 & 4)   of Opposite Party-2.     Hon’ble National Commission in case law reported as 2003 (1)CPR 356 (NC) has held that the burden of proof that the Opposite Parties were negligent is on complainant.  It is not for the Opposite Parties to show that they were not negligent and in cases of professional negligence higher standard of proof than ordinary civil cases of negligence is required. 

 

            In the present complaint except the affidavit of the complainant there is nothing on record to show  that Opposite Parties were negligent and the Opposite Parties 3 & 4 committed medical negligence in operation and treatment of the complainant.   Whereas from the Medical Expert Board opinion it is established that there is no medical negligence or deficiency in service on the part of Opposite Parties.   Therefore, the complainant failed  to prove that there is any negligence or deficiency in service on the part of Opposite Parties. 

 

            Hence, there is no merit in the complaint,  the complaint fails  and is hereby dismissed.  

 

Order pronounced on :8.11.2016

• Copy of order be sent to the concerned parties free of cost.
• Thereafter, file be  consigned to record.

 

 

 

 

(PUNEET LAMBA)                          (URMILA GUPTA)              (R.S.  BAGRI)

                                         MEMBER                             MEMBER                                                    PRESIDENT