Punjab

Faridkot

CC/18/134

Sharandeep Singh - Complainant(s)

Versus

Garg Clinic - Opp.Party(s)

Vipan Kumar Tayal

30 Nov 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

 C. C. No. :              134 of 2018

 Date of Institution:    08.08.2018

 Date of Decision :     30.11.2021

 

Sharandeep Singh aged about 23 years son of Ranjit Singh resident of Village Mehma Swai, Kothe Inder Singh Wale, Tehsil and District Bathinda.

...Complainant

Versus

1. Garg Clinic, Opp. Bus Stand, Jaitu, District Faridkot through Dr. Hukam Chand Garg.
2. Dr. Hukam Chand Garg, M S (Surgeon) Retd. (CMO) Garg Clinic opp. Bus Stand, Jaitu District Faridkot.
3. Oriental Insurance Co. Ltd through its Authorized Signatory A-25/27, Asaf Ali Road, New Delhi-110002.
4. Dr Vivek Kumar Jain, MD Anesthesia c/o Vivek Hospital, Backside Pukhraj Cinema, G T Road, Bathinda.              

....Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

(Now, Section 35 of the Consumer Protection Act, 2019)

 

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Quorum:    Smt Param Pal Kaur, Member,

                   Sh Vishav Kant Garg, Member.

 

Present: Sh Vipan Tayal, Ld Counsel for Complainant,

              Sh Atul Gupta, Ld Counsel for OP-1 and OP-2,

              Sh Vinod Monga, Ld Counsel for OP-3,

              Sh Satish Jain, Ld Counsel for OP-4,

             

ORDER

(Param Pal Kaur, Member)

 

                                       Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to pay  Rs.18,00,000/-as compensation on account of medical negligence and for further directing OPs to pay Rs.50,000/- as compensation for deficiency in service, harassment, inconvenience, mental agony alongwith litigation expenses.

2                                        Briefly stated, case of the complainant is that his wife was to go to Canada for higher study on 23.11.2017, but on 20.11.2017, she suffered from severe abdominal pain and was taken

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to be hospital of OPs, where OP-2 doctor told complainant that his wife has stone in gall bladder and immediate operation was required, otherwise it would be dangerous for her life. Wife of complainant was in family way and complainant also told this fact to OP-2. Complainant also told OP-2 that his wife had to go to Canada on 23.11.2017 and on this, OP-2 assured complainant that his wife would be discharged on 21.11.2017 after removal of stone and if stone was not removed, there would be threat to her life and also to the foetus in her womb and also asked him to deposit Rs.20,000/-. Complainant deposited Rs.20,000/-with OPs and then, OP-2 conducted operation of his wife on 20.11.2017, but OP-2 did not do the operation properly and carefully. Due to negligence on the part of OP-2, his wife underwent coma. OP-2 did not disclose this fact to complainant and said that there are minor complications and referred his wife to Indrani Hospital, Bathinda where concerned doctors told him that due to negligence on the part of OP-2 in conducting operation of his wife, his wife underwent coma and cannot be treated there and asked him to take his wife to some higher medical institute. Meanwhile, OP-2 came to complainant and

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fraudulently collected the reports and other medical record for treatment of his wife on the pretext that he has to discuss with doctors of Indrani Hospital regarding history of patient and also assured complainant that his wife would recover soon. Believing OP-2, complainant handed over the reports of his wife to OP-2. OP-2 told complainant that there is some problem in her brain and referred to take her to Bharat Hospital, Bathinda. Wife of complainant remained admitted in Bharat Hospital for ten days, but still there was no improvement. Complainant alongwith his family approached OP-2 and complained regarding wrong operation done upon his wife. On this OP-2 assured to bear all expenses on treatment of his wife and also gave in writing regarding this fact and requested to not to take any legal action against him. Thereafter, complainant got admitted his wife in DMC, Ludhiana on 30.11.2017, she remained there for about two and half months, but again there was no improvement and due to wrong operation conducted by OP-2, there developed infection in her abdomen, due to which child in her womb also died and doctors at DMC, Ludhiana aborted their baby and thus, both complainant and his

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wife were deprived of their first child. Being unable to bear further expenses, complainant brought his wife back at home and she is still in coma and he has to spend Rs.7000/-per week on her treatment. Complainant also made complaint regarding this to SSP, Bathinda. Wife of complainant is in very bad condition, she is in coma and is struggling for her life. All this happened due to wrong operation conducted by OP-2. Complainant has prayed for compensation to the tune of Rs.19,90,000/-for loss of health of his wife alongwith compensation for harassment and mental agony suffered by them besides cost of litigation. Hence, the present complaint.

3                                              The complaint was admitted after hearing and vide order dated  14.08.2018, notice was ordered to be issued to Opposite Parties to appear in person or through representative to file reply to the complainant.

4                                        In reply OP-1 and 2 appeared through counsel and file their written version taking preliminary objections that complaint is not maintainable on the ground that   Dr Vivek Kumar Jain, who is necessary party, is not impleaded in the array of Ops. 

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Wife of complainant suffered only due to negligence on the part of Dr Vivek Jain, who administered Anaesthesia upon the patient. It is further averred that ultrasound report and MRI dated 30.11.20217 of patient  conducted at DMC, Ludhiana shows that  patient suffered ‘hypoxic’ injury that occurs when entire brain is deprived of adequate oxygen supply and it happens due to overdose of anaesthesia and it has nothing to do with the operation conducted by OP-1 and OP-2. Patient was admitted with problem of Gall stones in the gall bladder and operation conducted for same was successful but patient sustained Cardio Pulmonary Arrest suddenly due to negligence on the part of Dr Vivek Jain. Dr Vivek Jain undertook Cardio Pulmonary resuscitation and patient was revived and put on ventilator fitted ambulance and shifted to Indrani Hospital and then to Bharat Hospital at the instance of complainant, though answering OPs referred the patient to GGS Medical College and Hospital, Faridkot. Answering OPs bore entired expenses and  paid Rs.1,50,000/-to Bharat Hospital, Bathinda. OP-1 and OP-2 paid Rs. 5,50,000/-for treatment of patient. Rs.1,50,000/-were paid to Bharat Hospital,  two times Rs. 50,000/-were paid at

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DMC, Ludhiana on 02.12.2017 and 5.12.2017, again paid Rs.50,000/- every time to complainant on 10.12.2017, 12.12.2017 and 26.12.2017 and cheque dated 09.01.2018 for Rs.1,50,000/- was also issued in favour of patient. However, on merits Op-1 and 2 have denied all the allegations levelled by complainant and reiterated the same pleadings as taken in preliminary objections. It is denied that complainant paid Rs.20,000/-to them for treatment, rather Rs.12,000/-were settled to be paid for surgery and that amount was also not paid by complainant to answering OPs. It is further averred that complaint filed against them is totally false, cooked up and vexatious and is filed to defame and extort illegal sum from them. There is no negligence or deficiency in service on the part of answering Ops in treating the wife of complainant. All the other allegations and the allegations with regard to relief sought too are denied being wrong and incorrect and prayer for dismissal of complaint with costs is made.                

5                                           OP-3 filed written statement wherein took legal objections that present complaint is not maintainable in the present form as there is no privity of contract between complainant and

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Insurance Company and it is liable to be dismissed. Complainant is not their consumer and complainant is barred by his act and conduct to file the present complaint and is not entitled for relief sought. OP-1 and 2 purchased the insurance policy bearing no.233293/48/2018/37 valid for the period from 05.08.2017 to 04.08.2018 for Rs.5 lacs and policy purchased by OP-1 and OP-2 pertains to their professional acts and in case, OP-1 and 2 are held negligent medically in present case, then being insured they can lodge their separate claim with OP-3 after making payment to the complainant. However, on merits, OP-3 has denied all the allegations levelled by complainant being wrong and incorrect and reiterated that no intimation was given to OP-3 regarding the admission, Medical Tests, Medical Treatment allegedly taken by deceased from OP-1 and OP-2 and moreover, there is no proof that there is any deficiency in service on the part of OP-1 and OP-2. It is also denied that there was any negligence in performance of duty during treatment given by OP-1 and OP-2. It is asserted that there is no deficiency in service on their part and prayed for dismissal of present complaint with costs.

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6                              OP-4 filed written statement taking legal objections that complaint filed by complainant is not maintainable as complainant is not their consumer and does not fall under the definition of consumer. Moreover, it does not disclose any negligence or deficiency in service on the part of answering OP. Complaint involves complicated questions of law requiring lengthy evidenced, cross examination which is not possible in the summary procedure of consumer courts. Complainant has not come to the Forum with clean hands and has suppressed the material facts and therefore, is not entitled for any relief sought. It is not maintainable for non joinder of necessary parties. He has filed false, frivolous and vexatious complaint with the motive of blackmailing the answering OP. It is averred that being MMBS, MD, he has served the Punjab Government as Medical Officer, Senior Medical Officer and he retired as Civil Surgeon and during his entire service, he has treated numerous patients and his work and conduct has always been appreciated by his superiors and no complaint of any type was ever made against him. He has vast experience of his field. On merits, he has denied all the allegations

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levelled against him and asserted that OP-2 called him for assistance as anaesthetists for conducting surgery of gall bladder in hospital at Jaitu on 20.11.2017. Accordingly, he attended the surgery and assisted OP-1 and 2 and had no conversation for any charges nor anything was taken by him from complainant for this purpose. Patient and her husband were fully apprised of the fact that there is no guarantee for 100% success of operation and regarding complication that might arise during surgery and same were duly signed by attendant husband. Thereafter, patient was given pre medication and the spinal anaesthesia by using profession skill with utmost care and surgery was conducted by OP-2. Patient was duly attended with care by answering OP during performance of surgery and all required medicines were administered. However, during the procedure after about 40 minutes, patient felt some difficulty in respiration and developed complication and had sudden cardiac arrest. Attending the situation that developed suddenly, answering OP immediately did resuscitation in the form of endotracheal intubation IPPR (Intermittent Positive Pressure Respiration) oxygen inhalation and gave injections Adrenaline and

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Efcrolin intravenously and revived the patient. Her respiration and pulse rate appeared normal and she was stable and then, she was shifted to recovery room in a stable condition with intact endotracheal intubation and all these have duly entered in operation notes in Bed Head Ticket. Utmost case of patient was taken and there was no negligence or carelessness in said operation. As desired by complainant and attendant of patient, patient was shifted to Indrani Hospital, Bathinda in a fully equipped ambulance. It is further averred that sudden cardio respiratory arrest was a medical complication that developed during the procedure being performed by OP-2 after about 40 minutes of its start and not due to any negligence on the part of OP-4. Complication occurred after 40 minutes when drug was already fixed and that was not the cause of complication of cardiac arrest and it may be due to Myocardial infarction, pulmonary embolism, trauma, hypercapnia, hypothermia and drugs as provided in oxford handbook of clinical medicine by R.A.Hope and others. It is denied that patient ever underwent coma, but was conscious. Allegation regarding abortion of her foetus is also denied. All the allegations levelled by

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complainant are totally denied being wrong and incorrect and prayer for dismissal of complaint with costs is made.

7                                                        Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to Ex C 560 and then, closed the evidence.

8                                                In order to rebut the evidence of the complainant, ld Counsel for OP-1 and 2 tendered in evidence affidavit of Dr. Hukam Chand Garg Ex OP-1, 2/1 and documents Ex OP-1, 2/2 to Ex OP-1,2 /8  and then, closed the same on behalf of OP-1 and OP-2. Ld Counsel for OP-3 tendered in evidence affidavit of Vikas Kataria, Divisional Manager OIC Ex OP-3/1 and copy of insurance policy Ex OP-3/2 and then, also closed evidence. Ld Counsel for OP-4 tendered in evidence affidavit of Dr. Vivek Kumar Jain Ex OP-4/1 and documents Ex OP-4/2 to Ex OP-4/5 and then also closed the evidence on behalf of OP-4.

 

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 9                                              We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents placed on the file.

10                                           It is observed that case of the complainant is that  his wife was in family way and was to go to Canada on 23.11.2017, but on 20.11.2017, she suffered from severe abdominal pain and she was admitted in the Garg Nursing Home/hospital of OP-1 and 2 under diagnosis of cholelithiasis i.e multiple stones in gall bladder. OP-2 said that his wife was required to be operated immediately and also assured that after operation, she would be fine within few hours. On asking of OP-2, complainant deposited Rs.20,000/-with them and then, OP-2 conducted operation of his wife on 20.11.2017 to remove the stones from her gall bladder. OP-2 did not conduct the operation of his wife properly and due to negligence and carelessness on the part of OP-2, wife of complainant underwent coma. OP-2 referred to take her to Indrani Hospital, where concerned doctors told him that due to wrong operation conducted by OP-2, his wife underwent coma and from she was taken to Bharat

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Hospital, Bathinda. She remained admitted in Bharat Hospital for ten days, but still there was no improvement. Complainant alongwith his family approached OP-2 and complained regarding wrong operation done upon his wife. OP-2 assured to bear all expenses regarding treatment of his wife and also gave in writing about this fact and requested to not to take any legal action against him. Thereafter, she was admitted in DMC, Ludhiana, she remained for about two and half months, but there was no improvement. Due to wrong operation conducted by OP-2, there developed infection in her abdomen, due to which child in her womb also died and doctors at DMC, Ludhiana aborted their baby and thus, both complainant and his wife were deprived of their first child. Unable to bear further expenses, complainant took his wife back at home and she is still in coma and he has to spend huge amount every week on her treatment. Wife of complainant is on death bed and it all happened due to negligence and carelessness done by OP-2 while conducting operation of his wife. He has prayed for accepting the present complaint. On the contrary plea taken by OP-1 and 2 is that wife of complainant suffered only due to

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negligence on the part of Dr Vivek Jain, who administered Anaesthesia upon the patient. Ultrasound report and MRI dated 30.11.20217 of patient  conducted at DMC, Ludhiana shows that  patient suffered ‘hypoxic’ injury that occurs when entire brain is deprived of adequate oxygen supply and it happens due to overdose of anaesthesia and it has nothing to do with the operation conducted by OP-1 and OP-2. Gall bladder stones were successfully removed and operation was successful but patient sustained Cardio Pulmonary Arrest suddenly due to negligence on the part of Dr Vivek Jain, who undertook Cardio Pulmonary resuscitation and she was revived and put on ventilator fitted ambulance and shifted to Indrani Hospital and then to Bharat Hospital at the instance of complainant, though OP-2 referred the patient to GGS Medical College and Hospital, Faridkot. OP-1 and 2 have paid Rs. 5,50,000/-for treatment of patient as a goodwill gesture and for humanitarian grounds though there is no deficiency in service on their part. Stand taken by OP-3 is that there is no privity of contract between complainant and Insurance Company. Complainant is not their consumer and is not entitled for relief sought. OP-1 and 2

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purchased the insurance policy for the period from 05.08.2017 to 04.08.2018 for Rs.5 lacs and as per policy for professional acts,  if, they are held negligent medically in present case, then being insured they can lodge their separate claim with OP-3 after making payment to the complainant. OP-4 asserted that OP-2 called him for assistance as anaesthetists for conducting surgery of gall bladder. He attended the surgery, assisted OP-1 and 2 and had not taken any consideration for this purpose. Patient was given pre medication and the spinal anaesthesia by using professional skill with utmost care and surgery was conducted by OP-2. Patient was duly attended with care by him during performance of surgery and all required medicines were administered. However, during the procedure after about 40 minutes, patient felt some difficulty in respiration and developed complication and had sudden cardiac arrest. Attending the situation that developed suddenly, OP-4 immediately did resuscitation in the form of endotracheal intubation IPPR (Intermittent Positive Pressure Respiration) oxygen inhalation and gave injections Adrenaline and Efcrolin intravenously and revived the patient. Her respiration and

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pulse rate appeared normal and she was stable and then, she was shifted to recovery room in a stable condition with intact endotracheal intubation and all these have duly entered in operation notes in Bed Head Ticket. Utmost case of patient was taken and there was no negligence or carelessness in said operation. As desired by complainant and attendant of patient, patient was shifted to Indrani Hospital, Bathinda in a fully equipped ambulance. It is further averred that sudden cardio respiratory arrest was a medical complication that developed during the procedure being performed by OP-2 after about 40 minutes of its start and not due to any negligence on the part of OP-4. Complication occurred after 40 minutes when drug was already fixed and that was not the cause of complication of cardiac arrest and it may be due to Myocardial infarction, pulmonary embolism, trauma, hypercapnia, hypothermia and drugs. There is no deficiency in service on the part of OP-4 and prayed for dismissal of complaint.

11                               From the careful perusal of report given by Medical Board, it is observed that during operation, anaesthetist recorded three readings of vitals of patient at 15 minutes interval i.e at

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11.15 AM, 11.30 AM and 11.45 AM. After patient suffered cardio pulmonary arrest, she was given  required medication and support and she allegedly recovered at 11.50AM. Frequency of monitoring of vitals of patient by anaesthetist during operation was inadequate and was not according to standard guidelines issued by American Society of Anaesthesiologists for monitoring of patients under anaesthesia. There is mismatch of vitals recorded by anaesthetist at 11.40 AM, 11.45 AM and 11.50 AM which shows inappropriate record keeping. Proportionately, patient was referred to Indrani Hospital, Bathinda in ambulance equipped with ventilator facilities and later on treated at Bharat Hospital, Bathinda, DMCH Ludhiana and PGI, Chandigarh.

12                                        Ld Counsel for complainant has placed reliance on citation given by Hon’ble National Commission, New Delhi in Consumer Case No.221 of 2000 decided on 05.01.2015 titled as Krishna Mohan Bhattacharjee (Dr.) Vs Bombay Hospital Medical Research Centre 2015 (2) CLT, wherein it is observed that hospital authorities are not only responsible for their nursing and other staff, doctors, etc, but also for the Anaesthetists and Surgeons, who practice

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independently, but admit/operate a case-it cannot be allowed to escape from the liability due to reasons of non-existing of master servant relationship between the hospital and the surgeon-The OPs failed in their duty of care by not advising relevant and important basic laboratory investigations. Thus, during the surgical procedure, frequency of monitoring of vitals of patient by anaesthetist was inadequate and not according to standard scientific guidelines. Occurrence of this complication could have been averted by adequate close monitoring of vital signs of patient and hence by detecting warning signs of complications.

13                                                    It is observed that surgeon was also required to use his best possible skill, taking utmost care. Deterioration in her condition could be prevented, if proper assessment of patient was done prior to surgery. Negligence is an essential ingredient of the offence. Negligence is the breach of a duty exercised 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.

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The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care, but in present case, OP-4 has not performed his duty properly and exercised an ordinary degree of professional skill and competence, he is held guilty of medical negligence. Due to wrong dose of drug while administering anaesthesia, blood pressure of patient started falling. Moreover, adequate care was not taken by OP-4 in monitoring the vitals of patient. Had proper care been taken and had the vitals been recorded at appropriate interval of time, fate of case would have been different. Complications could have been averted, if vital signs of patient were monitored closely.

14                         It is also observed that there is culpable negligence on the part of OP-2 as he was required to arrange cardiologist also at the time of conduction operation and he is  equally accountable for whatever happens in his hospital as OP-4 doctor was called by him for giving anaesthesia to patient. Op-2 was also required to be cautious in keeping track of vitals of patient at appropriate intervals of time. Due to negligence both on the part of OP-2 and 4, patient went into coma.

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Moreover, OP-1 and 2 are also deficient in providing services as they should have utilized the services of an expert Neurologist from another hospital and a team of cardiologists was required to be there when patient suffered cardio respiratory arrest soon after administration of anaesthesia by the anaesthesiologist. Treating surgeon and anaesthesiologist cannot pass blame on each other when they are part of the same team of specialists of treating patient. Total lack of coordination between treating surgeon and anaesthesiologist in treatment of patient is clearly visible.

15                                                  We have thoroughly gone through file and evidence and pleadings put forward by respective parties and from the perusal of all documents placed on record and in view of above discussion, we come to the conclusion that there is deficiency in service on the part of OP-2 and OP-4 as  they have not given best treatment as per best medical standards. Procedure adopted by them was not appropriate and during treatment negligence is committed by them. Therefore, we are of considered opinion that there is deficiency

 

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in service on the part of OPs. Hence, complaint in hand is hereby allowed against OP-1, 2 and 4. OP-3 has not role in treatment of patient, therefore, complaint against OP-3 Insurance Company stands hereby dismissed. It is made out that wrong has been committed to victim/wife of complainant and she needs to compensated for her health, financial loss caused to her by negligence of OP-2 and 4 and for future medical expenses and any pain or suffering endured by the victim. As gross negligence is on the part of OP-4, who administered anaesthesia, therefore, OP-4 is directed to pay Rs. 9,00,000/-to complainant for administering wrong dose of anaesthesia and in not monitoring the vitals of patient at appropriate times as per standard scientific guidelines issued by American Society of Anaesthesiologists. OP-2 is also directed to pay Rs.6,00,000/-to complainant for wrong committed to patient due to negligence in not arranging appropriate services of Neurologists and Cardiologists while conducting operation and in taking adequate care of patient. OP- 2 and 4 are further directed to pay Rs. 20,000/-each to complainant for harassment and mental agony suffered by complainant and the victim. (Amount already paid

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by OP-2 be deducted from the award amount) Compliance of this order be made within one month of receipt of the copy of the order, failing which complainant shall be liable to initiate proceedings under section 71 and 72 of the Consumer Protection Act, 2019. Copy of order be supplied to the parties free of cost. File be consigned to record room.

Announced in Open Forum

Dated : 30.11.2021

                     (Vishav Kant Garg)               (Parampal Kaur)                                                     Member                                  Member