BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHABAD.
Complaint Case no. 233 of 2016
Date of Institution: 05.09.2016
Date of decision: 16.08.2017
Mamta wife of Shri Ram son of Narain Dass, resident of village Gorakhpur, Tehsil and District Fatehabad. ……Complainant.
Versus.
1. Geeta Nursing Home Maternity and Surgical Hospital, Tau Devi Lal Market, G.T. Road, Fatehabad through its Proprietor.
2. Doctor Geeta Chaudhary, Geeta Nursing Home Maternity & Surgical Hospital, Tau Devi Lal Market, G.T. road, Fatehabad.
3. Doctor Arjun Singh Chaudhary, Geeta Nursing Home Maternity & Surgical Hospital, Tau Devi Lal Market, G.T. road, Fatehabad.
4. The Oriental Insurance Company Ltd. Oriental House, A-25/27, Asaf Ali Road, New Delhi- 110002, through its Authorized Signatory.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: Sh. Raghbir Singh, President.
Sh. R.S. Panghal, Member.
Smt. Ansuya Bishnoi, Member.
Present: Sh. Rohtash Bishnoi, Advocate for the complainant.
Sh. U.K. Gera, Advocate for opposite parties.
ORDER:-
In brief, the facts of the present complaint are that complainant belongs to a very poor family. On 3.6.2016, as she was pregnant and was feeling labour pains, she was got admitted in Geeta Nursing Home Maternity & Surgical Hospital, Fatehabad and doctor Geeta Chaudhary after getting conducted all the tests told that her blood pressure is high, so the delivery will be cesarean and they will have to pay an amount of Rs.20,000/- for the same at that time except the labour pains, she had no other problem. It is further averred that believing upon the assurance of the doctor, her husband asked the doctor to start the operation and he is going to arrange the money. The opposite party no.2 got conducted cesarean delivery of the complainant and inserted catheter. On 3.6.2016 at 5.20 p.m. a female baby was born and her husband deposited the amount of Rs.20,000/- for her cesarean delivery. It is further averred that thereafter up to 10.6.2016 she remained admitted in the hospital and on 10.6.2016 when she was discharged from the hospital, the catheter was removed and when she reached home, leakage/ urine started coming at its own and firstly the complainant thought that same is due to delivery but when the said problem continued then she visited the hospital of ops on 23.6.2016 and told about the problem upon which Op no.2 after check up told that this problem is due to delivery and prescribed some medicines and asked that she will be cured with the passage of time. It is further averred that complainant took the medicines prescribed to her in time but she did not get any relief from the problem of urine leakage and again on 30.6.2016 she visited the hospital of Ops and narrated about her problem upon which Op no.2 again prescribed medicines and told that said problem will be cured. The complainant continuously took medicines but there was no effect. Thereafter, on 6.7.2016 she visited the hospital of Ops and narrated about her continuous problem upon which Op no.2 after check up put catheter and asked that she has no treatment of this disease as a major operation is required. That due to insertion of catheter, the complainant was facing problem while standing-sitting and moving and her life became miserable. On 20.7.2016, the family members of the complainant took her to Doctor Ajay Sharda, Sharda Hospital, Hisar and the doctor got conducted ultrasound of the complainant and after seeing the report, the doctor told that during the cesarean delivery, due to negligence of the doctor, the urine bladder has been damaged due to some sharp thing and after prescribing medicines for five days asked that after five days she has to be admitted in the hospital and an operation will be conducted. On 25.7.2016 she was admitted in Sharda Hospital, Hisar and on 26.7.2016 when the operation was opened by the doctor, it was found that during the caesarian delivery, due to negligence of the doctor her uterus was also damaged and the doctor told that uterus will have also to be removed. That to save her life, the complainant had to undergo this operation and had to incur an amount of Rs.50,000/- in Sharda Hospital, Hisar and had to suffer physically as well as mentally. The complainant was discharged on 3.8.2016 and she is still under treatment and she is taking medicines. The Ops No.1 to 3 are responsible for all this and they have caused professional deficiency in service. It is further averred that husband of the complainant convened a Panchayat in this regard but the Ops instead of showing sympathy and accepting their mistake declared to do whatever they want. That due to negligence of the Ops, she has become physically weak. She has three daughters and has no male issue and now due to removal of uterus she is unable to conceive and in the old age there will be no one to look after them. Hence, this complaint.
2. On notice, opposite parties No.1 to 3 appeared and filed written statement taking certain preliminary objections that present complaint has been filed not with respect to any negligence/ deficiencies neither in service nor for any unfair trade practices adopted by them but has been filed purely to tarnish the clean image of the Ops and bring disrepute to its good name. There is no element of any negligence in the services rendered by the answering Ops to the patient Smt. Mamta, therefore, the complaint is liable to be dismissed with cost; that present complaint is not supported by any medical expert opinion by the complainant though it is essential to annex medical expert opinion before filing a consumer case. It is further submitted that complainant has concealed the material facts which go to the root of the disease of the complainant. The LSCS (cesarean) was not advised only due to the high blood pressure but there was edema on all over the body of the complainant and raised serum uric acid @ 5.9. Apart from this as per the history given by the patient two previous LSCS (Cesarean) had already been done and a third laparotomy was already done at Hisar and therefore, it was not advisable for a normal delivery. All these indications suggest a complicated case and it was not a simple case of normal delivery. All these things were duly explained to the patient and her husband. It is further submitted that it is also pertinent to mention here that the husband of the patient had himself signed on the bed head ticket after making himself fully understand. There were so much complications due to adhesions, even then the Op doctor performed a successful operation and saved the life of the patient and the newly born child. It is further submitted that the cesarean was conducted after taking consent from the husband of the complainant and making them understand. The complainant has mentioned that she was discharged on 10.6.2016 from the hospital and leakage of urine had started on reaching her at home. It is very important to say here that she had come in the hospital of ops on 23.6.2016 meaning thereby after thirteen days of the discharged from the hospital and the day of urine leakage. Had there been any major problem then she should have reported earlier but she had reported on 23.6.2016. In fact, slight leakage of urine is a well known complication after two cesarean/ LSCS and one laprotomy which was diagnosed and proper treatment was given to her. But on examination on 30.6.2016/ 6.7.2016, it was felt that it was a serious complication and she was advised to get treatment from higher centre. But as per the complaint, she went to higher centre on 20.7.2016 and was operated on 26.7.2016. The complication had not occurred due to any fault, negligence or deficiency on the part of the Ops but the same caused because the patient had already underwent two LSCS (cesarean operation) and one laprotomy due to which there were marked adhesions between the urinary bladder and the uterus. This fact is very well mentioned in the medical text books and reports. All these things were kept in view and best treatment was given to the complainant. If after taking all the precautions at the time of conducting the surgery, if any complication arises then in that case the surgeon/ doctor cannot be held liable for that. The ops have not made any deficiency in service. It is further submitted that the contents of the complaint relating to Sharda Hospital need no reply of the ops. However, it is also mentioned in the operational notes of Sharda Hospital that there were adhesions for which the part of uterus had to be removed which had adhesions and the same was removed and not the whole uterus. The removal of uterus was done only due to adhesions and not due to any bleeding from the uterus. Remaining contents of the complaint have also been denied.
3. Opposite party no.4 filed separate written statement taking preliminary objections regarding cause of action, locus standi and estoppal etc. On merits, it is submitted that reply filed by Op no.1 may also be read as reply of answering Op and the contents of the complaint have been denied.
4. The complainant produced her affidavit Ex.CW1, affidavit of Shri Ram husband of complainant Ex.CW2, examined Dr. Ajay Sharda, produced prescription slip of Geeta Nursing Home dated 10.6.2016 Annexure A, treatment record of Sharda Hospital Annexures B to P, medical bills Annexures Q to Z and A1 to A8, copies of treatment record of Geeta Nursing Home Annexures A9 to A11, medical bill Annexure A12 and receipt Annexure A13. On the other hand, ops produced affidavit of Dr. Arjun Singh Chaudhary OP No.3 as Annexure RW1 and policy schedule as Annexure R1 and R2.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. Learned counsel for the complainant while reiterating the averments of the complaint has contended that opposite party no.2 who conducted cesarean delivery of the complainant is not even qualified to do surgery and has played with the life of the complainant. He has further contended that due to the act and conduct of the opposite parties No.1 to 3, the complainant has suffered pain and sufferings as well as financial loss as she has to take treatment from another hospital and has spent a huge amount and prayed for acceptance of the complaint. In support, he has relied upon judgments of the Hon’ble National Commission in cases titled as Ranjit Kaur Bal (Dr.) & Anr. Versus Varinderjeet Kaur & Anr. IV (2015) CPJ 383 (NC), J.D. Bagree Hospital & others Vs. Vandana Goyal, FA No.58 of 2009 decided on 5th September, 2014 and A.Padmavathi Vs. Dr. M. Vijayendra & anr. IV (2016) CPJ 347 (NC) and Goyal Hospital & Research Centre Pvt. Ltd. & others Vs. Kishan Gopal Shukla & others, RP No.4023 of 2011 decided on 7th May, 2013. Learned counsel for the complainant has also contended that op no.2 who conducted cesarean delivery has not even placed on file her affidavit and has placed on file affidavit of her husband, therefore, an adverse inference is to be drawn against her. In support, he has relied upon judgment of the Hon’ble Punjab and Haryana High Court in case titled as Nachhattar Singh Vs. M/s. Darshan Kumar Rajiv Kumar Commission Agents, 2012 (3) CCC 618 (P&H).
7. On the other hand, learned counsel for the opposite parties has contended that opposite party no.2 is well qualified doctor having degree of doctor of medicine (Midwifery & Gynecology) and has vast experience in this field. He has further contended that complainant herself has suppressed the true and material facts from this Forum and she had already underwent two cesarean operations at the time of birth of her two daughters and above said complications in the case of the complainant are the result of the repeated cesarean operations and not due to any medical negligence. He has also reiterated the version of the written statement and prayed for dismissal of the complaint. Learned counsel for the ops also cited medical literature regarding operative gynecology.
8. We have considered the rival contentions of the parties and have duly perused the case law cited by learned counsel for the complainant as well as medical literature produced by learned counsel for the opposite parties.
9. At the very outset, we would like to mention that learned counsel for the complainant at the time of arguments has contended that opposite party no.2 is not a qualified surgeon and therefore she was not competent to do cesarean delivery of the complainant. The opposite parties No.1 to 3 in their written statement in para No.15 have averred that answering respondent No.2 & 3 are reputed and qualified surgeon having qualification MBBS, MS and is duly registered with Medical Council vide its Registration No.2028 of 1991 and No.15 of 1977 respectively. The copy of degree of opposite party no.2 produced at the time of arguments is from Maharishi Dayanand University, Rohtak and same is for doctor of medicine (Midwifery Gynecology). At the prescriptions slips of Geeta Nursing Home placed on file, the qualification of Dr. Geeta Chaudhary i.e. op no.2 has been shown as M.B.B.S. M.D. (Gynecologist). It is also very well known that MBBS doctors depending on their training and experience do minor and even major surgeries in the Community Health Centers and Sub divisional hospitals with permission. If a MBBS can do a cesarean in Govt. sector and not be negligent he cannot be negligent when operating in private sector if he does not falsely claim to possess qualification beyond MBBS. Our point is very simple. What is standard accepted medical practice is not negligence as per law specially under CPA. We understand that a MCI GI Surgery may perform a procedure better but it does not make a MS surgery performing the same, illegal. The doctors who are trained in a specialty but do not have a MCI recognized degree in the subject still retain the expertise. The purpose of any training cannot be only academic. Trained doctors may not be qualified specialists and super specialists but they cannot be stopped from practicing the profession they have been trained for. Even Oxford dictionary defines specialist as “a person “trained” (not qualified) in a particular branch of medicine. The term “especially” has been used in Italics to denote that those qualified are definitely included in specialists but it does not exclude those who are trained but not certified. The Hon’ble Supreme Court in case titled as Ramesh Chandra Vs. Regency Hospital Ltd. has broadly dealt and interpreted the scenario and held that “an expert is a person who devotes his time and study to a special branch of learning. However, he might have acquired such knowledge by practice, observation or careful study.” MD Medicine doctors write cardiologist on their boards and practice cardiology, MBBS doctors write Physician & Surgeon on their Boards, Female MBBS doctors with training in Obst & Gyn write Physician and Gynecologist against their name all over the country and these are all standard medical practice. The Indian Medical Council Act gives right to practice Gynecology to a MBBS doctor. Moreover, the qualification of op doctor is also mentioned in the prescription slips and therefore, it cannot be said that complainant was not aware about the qualification of the op doctor at that time. Further more, the husband of the complainant had also given a consent for the operation of the complainant in the hospital of ops No.1 to 3, so the contention of the complainant in this regard is hereby repelled.
10. Now, we come to the medical negligence, if any committed by the opposite party no.2. It is established on record that complainant was admitted in the hospital of the opposite parties No.1 to 3 on 3.6.2016 due to pregnancy and opposite party no.2 suggested cesarean delivery and accordingly cesarean delivery was conducted on her on the same day and one female child was born to the complainant. She was discharged from the hospital on 10.6.2016. The complainant has alleged that when she reached home, leakage of urine started and initially she did not take it seriously and considered it normal due to delivery but when the said problem continued she met the opposite party no.2 on 23.6.2016. It is also established on record that on 23.6.2016, opposite party no.2 prescribed medicines to the complainant but the problem of leakage of urine persisted and she again visited to the hospital of ops no.1 to 3 on 30.6.2016 and this time also op no.2 prescribed medicines to the complainant but the problem remained as it is and she visited the hospital of ops no.1 to 3 on 6.7.2016 and at that time op no.2 after checkup inserted catheter and referred her to the higher centre. It is also established on record that then she was taken to Dr. Ajay Sharda of Sharda Hospital, Hisar on 20.7.2016 and the doctor after prescribing some medicines for five days suggested operation to the complainant. The complainant was admitted in the said hospital on 25.7.2016 and she was operated by Dr. Ajay Sharda on 26.7.2016. It may be mentioned here that Dr. Ajay Sharda appeared in this Forum and made a statement that the patient Mamta was admitted in Sharda Hospital, Hisar on 25.7.2016 with dribbling of urine from vagina, however, cystoscopy test was done on 20.7.2016. On investigation, she was found to be having VVF and she was operated for the same on 26.7.2016. The patient was discharged on 3.8.2016. He has also proved treatment record of his hospital as Annexure B to Annexure A8. From the treatment record of Sharda Hospital, it is evident that VVF (Vesicovaginal Fistula) was repaired and some upper part of uterus was also removed as same was also damaged. We are of the considered opinion that the opposite party no.2 has caused medical negligence as she did not take the problem of leakage of urine seriously on 23.6.2016 when for the first time the complainant disclosed the said problem to her. The problem of leakage of urine was not normal as if it would have been normal then same should have been cured/ stopped after some time of operation which was conducted on 3.6.2016 but it remained continuous and accordingly she visited the hospital of ops no.1 to 3 on 23.6.2016 after discharge from hospital on 10.6.2016 and at that time op no.2 only prescribed medicines with an assurance that she will be all right. Then on 30.6.2016, when the said problem persisted, the op no.2 this time also prescribed some medicines and did not get conduct required tests. It is the plea of the opposite parties No.1 to 3 in their written statement that on 30.6.2016/06.7.2016, it was felt that it was a serious complication and she was advised to get treatment from higher centre but this plea is only an evasive reply because on 30.6.2016 also the opposite party no.2 did not consider the problem of the complainant seriously and simply prescribed medicines instead of getting conducted some required tests to know the cause of the frequent leakage of urine. The opposite party no.2 should have got conducted the required tests to know the actual cause of the frequent leakage on 23.6.2016 when complainant visited her with the said problem after the cesarean delivery as same was done on 3.6.2016 and above said problem was not cured up to 30.6.2016 i.e. for a long period of 27 days and if it was a normal thing, then the leakage should have been stopped within this period of 27 days. The opposite party no.2 could have also referred the complainant on 23.6.2016 itself to a more specialized hospital but that has also not been done by the Op no.2. Even the opposite party no.2 also prescribed medicines on 30.6.2016 and did not prefer either to have conducted required tests or to refer the patient to the higher centre and she referred the patient only on 6.7.2016 and as such medical negligence of Op no.2 in this regard is proved on record by the complainant. However, the complications arose to the complainant are only the result of repeated cesarean and not due to medical negligence. The opposite parties No.1 to 3 are liable to pay compensation for the above discussed lapses and medical negligence and Op no.4 being the insurer of the hospital of Ops No.1 to 3 is also liable to indemnify the complainant.
11. Thus, as a sequel to our above discussion, we allow the present complaint and direct the opposite parties jointly and severally to pay a lump sum amount of Rs. 1,25000/- as compensation to the complainant within a period of one month from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @ 9% per annum from the date of filing of present complaint till actual payment. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum. (Raghbir Singh)
Dated: 16.8.2017. President
District Consumer Disputes
Redressal Forum, Fatehabad.
(R.S. Panghal) (Ansuya Bishnoi)
Member Member
