STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
First Appeal No. | : | 422 of 2013 |
Date of Institution | : | 30.09.2013 |
Date of Decision | : | 04/12/2013 |
Manmohan Singh son of Harbans Singh, Resident of Kothi No. 3393, Sector 71, SAS Nagar, Mohali.
……Appellant/Complainant
V e r s u s
1. Government
2. Dr. Vidhur Bhalla, Urologist, Visiting Head, Government Medical College and Hospital, Sector 32, Chandigarh.
IInd Address:-
Kothi No. 2485, Sector 19-C, Chandigarh – 160019.
3. Dr. Simranjit Singh, (S.R.), Government Medical College and Hospital, Sector 32, Chandigarh.{Deleted by the District Forum vide order dated 28.05.2012}
4. M/s The New India Assurance Company Limited, Insurer Code: Unit 35010, SCO No. 36-37, Ground Floor, Sector 17-A, Chandigarh – 160017 (Insurer of Dr. Vidhur Bhalla).
....Respondents/Opposite Parties
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
MR. DEV RAJ, MEMBER.
Argued by:Sh. Gurdial Singh, Advocate for the appellant, alongwith Sh. Manmohan Singh, appellant, in person.
Sh.Jatinder Singh, Government Pleader for respondent no.1.
Sh.Raj Kumar Bashamboo, Advocate for respondents no.2 and 4, alongwith Dr.Vidhur Bhalla, respondent no.2 in person.
Opposite Party No.3 deleted by the District Forum, vide order dated 28.05.2012.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT
This appeal is directed against the order dated 22.08.2013, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant).
2. The facts, in brief, are that the complainant claimed himself, to be a 66 years old retired Defence Officer, and a pensioner, covered under the CGHS Scheme. On feeling pain during urination, he went to the Govt. Medical College and Hospital, Sector 32, Chandigarh, on 11.04.2009, for getting himself treated or to be referred to some other CGHS recognized Hospital. After initial check-up/tests, in the said Hospital, the Complainant was admitted, on 10.08.2009, vide Card No.200920764 as an indoor patient for treatment. An operation was conducted, on the complainant, in the said Hospital, under the supervision of Dr.Vidhur Bhalla, Urologist/Opposite Party No.2 and he was discharged on 14.08.2009, with a direction to visit for follow-up treatment, as per the direction of the treating Doctor. It was stated that the complainant had been going to the said Hospital, for his treatment, from time to time, as per the advice/prescription of the treating Doctor.
3. It was further stated that even after the endoscopy laser operation conducted for the aforesaid problem, the complainant did not feel any relief, but, on the contrary, more uneasiness and restless with heavy pain started. The complainant told the treating Doctor/Opposite Party No.2, and informed about his deteriorating condition. Dr.Vidhur Bhalla, Urologist/ Opposite Party No.2, advised and prescribed follow-up treatment, which continued upto 16.02.2010. It was further stated that, on many occasions, the complainant requested Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, as well as other treating Doctors of the Government Medical College Hospital, Sector 32, Chandigarh, that he may be referred to some reputed CGHS recognized Hospital, at Mohali, Chandigarh or nearby station, for proper treatment of the urinary problem, but they told him that the Doctors in the said Hospital were well qualified to treat him. Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, also remarked that they were not less qualified than other Doctors of the private/CGHS recognized Hospitals. He further told that they could very well treat the urinary problem of the complainant. It was further stated that, on the basis of such assurance, the complainant continued to get treatment from Opposite Party No.1 Hospital, with the hope that he would recover soon. In addition to the medication provided, different numbers of Foleys, as per the recommendations of the Doctors, were inserted by Dr.Simranjit Singh, Senior Resident/Opposite Party No.3, as well as other treating doctors, under the supervision and guidance of Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, from time to time. It was further stated that the insertion of Foleys Catheter, by Opposite Party No.3, seemed to be a hit and trial method, adopted by him, as it instead of providing relief to him, pains, uneasiness and restlessness went on increasing day by day.
4. It was further stated that it was told to the complainant that Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, only visited the Government Medical College Hospital, Sector 32, Chandigarh, on specific days, and there was no Urology Department/Ward, in the Hospital. It was further stated that calibration Foley No.12 was put in and other medicines were also being taken, as per the advice of the Doctors, but even then the complainant faced grave problem, in the prostate area. It was further stated that even the blood mixed in urine, could also be seen, in the intervening period from 13.02.2010 to 16.02.2010. The complainant got himself examined in the emergency ward of the Government Medical College Hospital, Sector 32, Chandigarh, on 13.02.2010 and 14.02.2010. During his visit to the Government Medical College Hospital, Sector 32, Chandigarh, on 16.02.2010, the complainant also contacted Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, telephonically, but he was not available. It was further stated that though some emergency treatment was given to the complainant, in Government Medical College Hospital, Sector 32, Chandigarh, on 16.02.2010, yet, due to continuous severe pain, as well as swelling, in the prostate area, on that date, he almost fainted and realized that he was not treated properly, there, and he would die, if he continued taking treatment there. Under such circumstances, the complainant was taken to Kapoor’s Kidney and Uro Stone Centre, Sector 46-D, Chandigarh, for treatment of the said problem.
5. On 16.02.2010, while undergoing treatment, in to Kapoor`s Kidney and Uro Stone Centre Pvt. Ltd., Sector 46-D, Chandigarh, the complainant was examined by Dr. Anshumaan V. Kapoor, Urologist and Andrologist. Dr. Anshumaan V. Kapoor, Urologist and Andrologist, told the complainant that Foley No.12 was wrongly inserted, by the Doctors of Government Medical College Hospital, Sector 32, Chandigarh, due to which there was pain and drops of blood mixed in urine, as also there was swelling, in the whole urinal area. Dr. Anshumaan V. Kapoor, Urologist and Andrologist, also told the complainant that the previous operation was not properly conducted, by the Doctors of Government Medical College Hospital, Sector 32, Chandigarh, which was the reason for his continuing discomfort. Subsequently, Dr. Anshumaan V. Kapoor, Urologist and Andrologist, conducted operation, upon the complainant, on 20.02.2010, as well as on 03.03.2010. During the said operation, Dr. Anshumaan V. Kapoor, Urologist and Andrologist, removed Foley No.12 inserted by the Doctors of Government Medical College Hospital, Sector 32, Chandigarh. It was further stated that thereafter, the complainant was discharged, and felt unexpected relief within a few days. It was further stated that within a few days, and in a month, or so, appreciable relief realized and the complainant was almost alright and observing the follow up action.
6. It was further stated that the aforesaid acts, on the part of Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, of the Government Medical College Hospital, Sector 32, Chandigarh/Opposite Party No.1, under whose supervision the operation was conducted and he was given treatment proved that the Opposite Parties were guilty of medical negligence and carelessness. It was further stated that maxim ‘res-ipsa-loquitor’ was applicable to this case, as the things spoke for themselves, and no further proof was needed. It was further stated that the complainant spent approximately, a sum of Rs.70,000/-, on his treatment, in Kapoor`s Kidney and Uro Stone Centre Pvt. Ltd., Sector 46-D, Chandigarh. It was further stated that the Opposite Parties were asked to pay compensation, to the complainant, as also the amount, spent by him, in getting treatment, in Kapoor`s Kidney and Uro Stone Centre Pvt. Ltd., Sector 46-D, Chandigarh, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay a sum of Rs.70,000/-, spent by him, in getting treatment, in Kapoor`s Kidney and Uro Stone Centre Pvt. Ltd., Sector 46-D, Chandigarh, and compensation, to the tune of Rs.30,000/-, for mental agony and physical harassment.
7. Opposite Party No.1 i.e. Government Medical College Hospital, Sector 32, Chandigarh, in its written version, pleaded that the complaint was barred by limitation. It was further pleaded that the complaint was not maintainable, as there was no medical negligence, on the part of Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, who operated upon the complainant and treated him. It was stated that the complainant had also filed a Consumer Complaint bearing No.348 of 201 earlier, on the same allegations, against the Opposite Parties, and when the same (complaint) was referred to the Committee of Doctors of the Post Graduate Institute of Medical Education and Research, Chandigarh, (hereinafter to be refereed as the PGIMER), and report dated 22.10.2011 was received, ruling out any medical negligence, on the part of Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, and any other doctor of Government Medical College Hospital, Sector 32, Chandigarh/Opposite Party No.1, the same (complaint) was withdrawn, without any justification. It was further stated that the complaint was bad for non-joinder of necessary parties. It was further stated that the complainant had suppressed the material facts, from the District Forum, and, as such, the complaint was liable to be thrown out, at the very threshold. It was further stated that, at the time of initiation of treatment of the complainant, in the Government Medical College Hospital, Sector 32, Chandigarh, the age of the complainant was 66 years. The complainant, for the first time, approached the Government Medical College Hospital, Sector 32, Chandigarh, on 11.04.2009, in the Surgery O.P.D., for treatment of urinary problem of hesitancy and feeling of incomplete evacuation. He was examined by an expert- Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, and, on the first visit itself, it was found that he (complainant) had already undergone two endoscopic surgeries, in the years 2000 and 2004, respectively, in the same urinary passage (Urethra), before approaching the Government Medical College Hospital, Sector 32, Chandigarh. It was further stated that initially the complainant was suffering from narrowing of urinary passage i.e. stricture urethra or bladder neck stenosis. Accordingly, he was advised certain investigations, including ultrasound and retrogradeurethrograminfact 08.08.2009), and after taking a sympathetic view, he was promptly admitted on 10.08.2009, as indoor patient.
8. It was further stated that endoscopy surgery was performed on the complainant, for opening of narrowed urinary passage, on 11.08.2009, by Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, alongwith other Doctors, nursing and technical staff. On Endoassessment, the findings were that bladder neck was very narrow and fibrous. Bladder neck incision was performed, and a small amount of protuberant prostate tissue was removed. It was further stated that after the operation, the post operative recovery was smooth and satisfactory, and the complainant was discharged on 14.08.2009, from the Government Medical College Hospital, Sector 32, Chandigarh. It was further stated that the complainant was passing urine normally and had no complaints, at the time of discharge. He was advised for routine follow-up on 22.08.2009. It was further stated that the complainant visited the surgery O.P.D. of the Government Medical College Hospital, Sector 32, Chandigarh, on 22.08.2009, for follow-up surgery and was attended by the treating consultant and he made no complaints, with regard to the treatment given to him, and he was fully satisfied and comfortable with the operation. His urinary passage was checked with the catheter (Calibration), and it was found to be normal. It was further stated that the complainant was again examined by Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, at weekly intervals and on 31.10.2009, and he was found to be in satisfactory condition. Thereafter, the complainant approached Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, on 02.01.2010, and he was examined and was advised catheterization, which was required to maintain the caliber of urinary passage.
9. As per minor O.P.D. register, recorded by the nursing staff on duty, on 02.01.2010, the complainant refused the treatment Guidelines, with an assurance to come on the following Wednesday, but did not return till 13.02.2010. It was further stated that, on 13.02.2010, the complainant visited Government Medical College Hospital, Sector 32, Chandigarh, where he was examined by Dr. Simranjit Singh, Senior Resident/Opposite Party No.3, in the surgery O.P.D. It was denied that the complainant made multiple visits to the Government Medical College Hospital, Sector 32, Chandigarh. It was further stated that the complainant attended emergency O.P.D. of the Government Medical College Hospital, Sector 32, Chandigarh, on 16.02.2010 at 9.28 a.m., with fresh problem of pain, in urinary passage with catheter. He was admitted promptly and was examined by the Doctors and Nursing Staff, on duty, posted in the emergency. It was further stated that vitals of the complainant were checked, and as per the initial examination, his pulse and blood pressure were found to be normal, and there was no fever. It was further stated that doses of antibiotic and analgesics were given. It was further stated that the Doctors and the Nursing Staff of the emergency ward of Government Medical College Hospital, Sector 32, Chandigarh, were monitoring the health of the complainant, from time to time.
10. It was further stated that, instead of waiting for the medicines to show their effect, the complainant left the said Hospital, against the advice of the Doctors. It was further stated that no documentary evidence, was produced by the complainant, that Dr. Anshumaan V. Kapoor, Urologist and Andrologist of Kapoor`s Kidney and Uro Stone Centre Pvt. Ltd., Sector 46-D, Chandigarh, where he took treatment from 16.02.2010 onwards, told him that the operation was not conducted properly by the Doctors of Government Medical College Hospital, Sector 32, Chandigarh. It was further stated that Opposite Party No.1 and its Doctors were not guilty of medical negligence. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
11. Opposite Party No.2, in his written version, pleaded that the complaint being barred by time, was liable to be dismissed. It was further pleaded that the complaint was bad for non-joinder of necessary parties. It was further pleaded that the complainant approached the District Forum with unclean hands, by suppressing the material facts, and, as such, was liable to be thrown out, at the very threshold. It was stated that since the earlier complaint was filed and the complainant withdrew the same, without any rhyme or reason, the second complaint, on the same cause of action, was not at all maintainable. It was further stated that when the complainant approached Opposite Party No.1 Hospital, he disclosed that he had been operated upon twice, in the years 2000 and 2004, by other Hospitals, to open his narrow urinary passage. It was further stated that the complainant came to Opposite Party No.1 Hospital, for the first time, on 11.04.2009, for his un-resolving urinary problem. The complainant was evaluated and found to be suffering from recurrence of narrowed urinary passage medically called bladder neck stenosis with bladder outlet obstruction. It was further stated that, thereafter, the complainant visited Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, on 23.05.2009. The complainant was, accordingly, told to report on 20.06.2009, for admission. It was further stated that the complainant, however, failed to turn up by the due date, for admission. Thereafter, a fresh date was requested by the complainant, in the month of July 2009, which was given. Again he did not turn up. It was further stated that finally, the complainant came to Dr.Vidhur Bhalla, Urologist/ Opposite Party No.2, on 08.08.2009, and was promptly admitted on 10.08.2009, as an indoor patient. It was further stated that endoscopy surgery was performed on the complainant, for opening of narrowed urinary passage, on 11.08.2009, under the supervision of Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, alongwith other Doctors, nursing and technical staff. On Endoassessment, the findings were that bladder neck was very narrow and fibrous. Bladder neck incision was performed, and a small amount of protuberant prostate tissue was removed. It was further stated that after the operation, the post operative recovery was smooth and satisfactory, and the complainant was discharged on 14.08.2009, from the Government Medical College Hospital, Sector 32, Chandigarh. It was further stated that during the stay of the complainant, in the Government Medical College Hospital, Sector 32, Chandigarh, he was passing urine normally and had no complaints, at the time of discharge. It was further stated that the complainant was advised for routine follow-up on 22.08.2009.
12. It was further stated that the complainant visited the surgery O.P.D. of Government Medical College Hospital, Sector 32, Chandigarh, on 22.08.2009, for follow-up surgery and was attended by the treating Consultant, and he made no complaints, with regard to the treatment given to him, and he was fully satisfied and comfortable with the operation. His urinary passage was checked with the catheter (Calibration), and it was found to be normal. It was further stated that the complainant was again examined by Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, at weekly intervals and on 31.10.2009, and he was found to be in satisfactory condition. Thereafter, the complainant approached Dr.Vidhur Bhalla, Urologist/ Opposite Party No.2, on 02.01.2010, and he was examined and was advised catheterization, which was required to maintain the caliber of urinary passage. As per the Surgery Minor O.P.D. Register, recorded by the nursing staff on duty, on 02.01.2010, the complainant refused the treatment Guidelines, with an assurance to come on the following Wednesday, but did not return till 13.02.2010. It was further stated that refusal of the complainant, for further treatment, on 02.01.2010, was detrimental to the management of his disease. It was further stated that on 16.02.2010 he came to the emergency OPD of Opposite Party No.1. He was admitted and advised medicines, but he left the Hospital against medical advice. It was denied that there was any medical negligence, on the part of Opposite Party No.2, in conducting operation for the aforesaid disease of the complainant, or treating him, in the Hospital. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.2, nor he indulged into unfair trade practice. The remaining averments, were denied, being wrong.
13. On the statement of the Counsel for the complainant, made on 28.05.2012, the name of Opposite Party No.3 was deleted, from the array of the Opposite Parties.
14. The complainant, Opposite Parties No.1, 2 and 4, led evidence, in support of their case.
15. After hearing the Counsel for the complainant, Opposite Parties No. 2 and 4, alongwith Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, in person, Govt. Pleader for Opposite Party No.1, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.
16. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
17. We have heard the Counsel for the appellant, alongwith the appellant, in person, respondents no.2 and 4, alongwith Dr. Vidhur Bhalla, respondent no.2, in person, Govt. Pleader for respondent no.1, and, have gone through the evidence, and record of the case, carefully.
18. The Counsel for the appellant, submitted that the operation of the appellant/complainant, for urinary problem was not properly conducted on 10.08.2009, in Opposite Party No.1 Hospital, under the supervision of Dr.Vidhur Bhalla, Urologist/Opposite Party No.2. He further submitted that Dr.Vidhur Bhalla, Urologist/ Opposite Party No.2, under whose supervision, the operation was conducted, was careless, and did not exercise due skill expected of him. He further submitted that even after conducting the laser endoscopic operation, he was feeling more uneasiness and restlessness with heavy pains. He further submitted that Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, advised and prescribed the follow-up treatment, which continued upto 16.02.2010. He further submitted that when the complainant was not feeling any relief, he approached Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, and told him, to refer him (complainant) to some reputed CGHS recognized Hospital, at Mohali, Chandigarh, or nearby Hospital, for proper treatment, but he did not do so. He further submitted that, in turn, Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, told the complainant, that the Doctors of the Government Medical College Hospital, Sector 32, Chandigarh, were more competent to treat the disease, from which he was suffering. He further submitted that since the complainant did not feel any relief, he had to go to Kapoor`s Kidney and Uro Stone Centre Pvt. Ltd., Sector 46-D, Chandigarh, wherein Dr. Anshumaan V. Kapoor, Urologist and Andrologist, told him that the previous operation, in the Government Medical College Hospital, Sector 32, Chandigarh, was not properly conducted upon him, and that was why, he was suffering from urinary pain, swelling etc. Dr. Anshumaan V. Kapoor, Urologist and Andrologist, of Kapoor`s Kidney and Uro Stone Centre Pvt. Ltd., admitted the complainant, and diagnosed him. He further submitted that it was told by Dr. Anshumaan V. Kapoor, Urologist and Andrologist, that Foley No.12 was wrongly inserted, by the concerned Doctor of the Government Medical College Hospital, Sector 32, Chandigarh, as a result whereof, the blood mixed in the urine, leading to swelling in the urinal area, below umbilicus. He further submitted that, thereafter, Dr. Anshumaan V. Kapoor, Urologist and Andrologist, of Kapoor`s Kidney and Uro Stone Centre Pvt. Ltd., conducted another operation upon the complainant, whereafter, he felt relieved of the pain, and also of the problems aforesaid. He further submitted that these facts clearly speak for themselves with regard to the palpable medical negligence, on the part of Opposite Parties No.1 and 2. He further submitted that the legal maxim
19. On the other hand, the Govt. Pleader for respondent no.1, Counsel for respondents no. 2 and 4, alongwith respondent no.2/Opposite Party No.2, in person, submitted that, the complainant was admitted, in the Hospital of Opposite Party No.1, on 10.08.2009, and was operated upon on 11.08.2009 for the disease, aforesaid, under the supervision of Dr.Vidhur Bhalla, Urologist/Opposite Party No.2. Ultimately, he was discharged on 14.08.2009. They further submitted that the operation upon the complainant, under the supervision of Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, was performed, with due care and caution, by exercising due skill, on 11.08.2009. They further submitted that after the operation, the recovery was very smooth and satisfactory. They further submitted that the complainant was passing urine normally and had no complaints, at the time of discharge. They further submitted that the complainant was advised for routine follow up, on 22.08.2009. They further submitted that when the complainant visited the O.P.D. on 22.08.2009, for follow up, after surgery, he was attended by the treating Consultant, when no complaints were made by him, with regard to any problem. They further submitted that the complainant was completely satisfied and comfortable, with the operation, aforesaid, conducted under the supervision of Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, in Opposite Party No.1 Hospital. They further submitted that again on 02.01.2010, the complainant was examined and was advised catheterization, which was required to maintain the caliber of urinary passage. They further submitted that the complainant refused to adhere to the treatment Guidelines, with an assurance to come on the following Wednesday, but he did not report from 13.02.2010 to 15.02.2010. They further submitted that, on 16.02.2010, at about 9.28 a.m., the complainant reported in the emergency ward of Opposite Party No.1 Hospital, with fresh problem of pain, in urinary passage with catheter. The complainant was admitted promptly and was examined by the Doctors and Nursing Staff, on duty. They further submitted that instead of waiting for medicines, to show their effect, the complainant left the Hospital, against the advice of the Doctors. They further submitted that even, in the earlier complaint, filed by the complaint, which was, ultimately, dismissed as withdrawn, on the basis of the statement of the Counsel for the complainant, the District Forum, referred the case, to the medial experts of Post Graduate Institute of Medical Education and Research, Chandigarh, (hereinafter to be refereed as the PGIMER), and a Committee of Doctors was appointed, which gave its report Annexure R-2/O. The Committee found that there was no medical negligence, on the part of Opposite Party No.1, and its Doctors, who conducted operation, on the complainant. They further submitted that the District Forum was right, in holding that no medical negligence could be attributed to the Opposite Parties. They further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
20. The first question, that falls for consideration, is, as to whether, the complaint was barred by time, or not. Specific objections were taken by Opposite Parties No.1 and 2, in their written versions, that the complainant filed earlier complaint, bearing no.348 of 2011, which was dismissed as withdrawn, vide order dated 19.12.2011 and liberty was granted to him, to file a fresh complaint, on the same cause of action. The question arises, as to when the cause of action finally arose to the complainant, against the Opposite Parties. No doubt, the complainant was admitted, in the Hospital of Opposite Party No.1, on 10.08.2009, and was operated on 11.08.2009, for the disease aforesaid, under the supervision of Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, and was discharged on 14.08.2009. Thereafter, the complainant was visiting Opposite Party No.1 Hospital, for follow-up treatment. For the last time, the complainant went to Opposite Party No.1 Hospital, on 16.02.2010, when he again felt problem and pain, after the surgery, aforesaid, and was admitted and advised medicines, but instead of waiting for the medicines, to show their effect, he left the Hospital, against the advice of the Doctors. Follow-up treatment, in pursuance of the surgery, which was performed upon the complainant, on 11.08.2009, under the supervision of Opposite Party No.2, continued upto 16.02.2010. The complaint could be filed within two years, from 16.02.2010. The Consumer Complaint, out of the decision whereof, the instant appeal has arisen, was filed on 13.02.2012. Thus, the complaint was filed within the period of limitation, as prescribed by Section 24-A of the Act. The District Forum, in paragraph number 10 of the order impugned, in our considered opinion, was wrong, in coming to the conclusion, that when permission was granted, to the complainant, to file a fresh complaint, vide order dated 19.12.2011, when he had withdrawn the earlier complaint, due to technical defects, an objection on delay, in filing the complaint was not tenable. It may be stated here, that permission was granted to file a complaint, afresh, on the same cause of action, if the same was otherwise legally permissible, under law, and subject to all just exceptions. The order of the District Forum could not extend the period of limitation. The reasoning adopted by the District Forum, while dealing with the issue of limitation, could not be said to be correct. However, as stated above, since the cause of action, arose to the complainant, to file a Consumer Complaint, on 16.02.2010, the last date, when he visited Opposite Party No.1 Hospital, for follow-up treatment, and the complaint, having been filed on 13.02.2012, was well within limitation. The submission of the Govt. Pleader for respondent no.1 and Counsel for respondents no.2 and 4, therefore, being devoid of merit, must fail, and the same stands rejected.
21. The second question, that falls for consideration, is, as to whether, there was any medical negligence, on the part of the Doctors of Opposite Party No.1, in operating upon the complainant and, for the disease aforesaid, or not.
“94.
I. | 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. |
II. | Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. |
III. | The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. |
IV. | A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. |
V. | In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. |
VI. | The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. |
VII. | Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. |
VIII. | It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck. |
IX. | It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension. |
X. | The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. |
XI. | The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.” |
22. In the case of
23. In
24. It is evident, from the principle of law, laid down, in the aforesaid cases, that as long as, the Doctor performs his duties and exercises an ordinary degree of professional skill and competence, he cannot be held guilty of medical negligence. It is imperative that the doctor must be able to perform his professional duties, with free mind.Government Medical College Hospital, Sector 32, Chandigarh, that he was admitted therein, on10.08.2009, and endoscopy laser operation was conducted on him, on11.08.2009, for opening of narrowed urinary passage. Operative findings were bladder neck was very narrow and fibrous. Bladder neck incision was performed and a small amount of prostate tissue was removed. The complainant was discharged on14.08.2009, from theGovernment, in a satisfactory and comfortable condition. He was passing urine normally, and had no complaint, at the time of discharge, as is evident, from the admission card, referred to above, and the affidavit ofDr.Vidhur Bhalla, Urologist/Opposite Party No.2,under whose supervision, the operation was conducted, on him. Had there been any complaint, on the part of the complainant, that he was unable to pass the urine normally, or had he been having any problem, at that time, he would have certainly told about the same, to the Doctor(s) attending on him, and the same would have certainly been taken care of. Thereafter, the complainant visited the O.P.D. of theGovernment22.08.2009, but even at that time, he did not make any complaint. The complainant was fully satisfied, and comfortable with the operation. The urine passage was checked with the catheter (calibration), and it was found to be normal and clear. For routine follow-up treatment, the complainant was again examined by Opposite Party No.2, after one week i.e. on 31.08.2009 and then on 31.10.2009. On these dates, the complainant was found to be in a satisfactory condition, and there was no complaint, on his part, that he was feeling any problem, in passing urine etc. Thereafter, the complainant visited Opposite Party No.2, on 02.01.2010, and was examined. He was advised catheterization, which was required to maintain the opened up urinary passage. However, the complainant, took up the matter casually, and did not abide by the advice of the Doctor. He refused the treatment Guidelines, with an assurance to come, on the next Wednesday, and did not return thereafter. Extract of the record, from the register, with regard to Surgery Minor OT B-Block ofGovernment
““……….The committee in its meeting held on 21.10.2011 at 03:30 PM in the office of Advanced Urology Centre, PGI, Chandigarh went through the details of the documents provided. Mr. Manmohan Singh has a history of having undergone endoscopic surgery for prostate enlargement (TURP) in 2000/2001. He again underwent surgery in 2005 for narrowing of the urinary passage (urethra). In August 2009 he again had undergone endoscopic surgery for the narrowing of the passage at Govt. Medical College and Hospital, Sector 32, Chandigarh. As per records his urinary flow was good during follow up. Again he was found to have narrowing of the urinary passage and repeat surgery was advised on 16thrd March, 2010.
Narrowing of the urinary passage is a known complication of endoscopic surgery of prostate. The experts of the Committee are of the opinion that no medical negligence was made out in this case.”
25. It is evident, from the afore-extracted report of the Committee of the Doctors of PGIMER, that narrowing of the urinary passage, is a known complication of endoscopic surgery of prostate. The expert Committee was of the opinion that no medical negligence was made out, in the said case. No evidence was produced, on record, what to speak of tangible, to falsify the correctness and authenticity of this report or rebut the same. The District Forum, and this Commission, in our considered opinion, cannot substitute the opinion of the aforesaid Committee of medical experts, with their own opinion. It was, thus, proved from the evidence, on record, that there was no medical negligence, on the part of Opposite Parties No.1 to 2. Dr.Vidhur Bhalla, /Opposite Party No.2, under whose supervision the operation, on the complainant, was conducted on 11.08.2009, is a well qualified Urologist. Dr.Vidhur Bhalla, Urologist/Opposite Party No.2, under whose supervision the operation was conducted, alongwith other Doctors, performed their duties, by exercising an ordinary degree of professional skill
26. No doubt, according to the complainant, when he did not feel relief, he went to Kapoor`s Kidney and Uro Stone Centre Pvt. Ltd., Sector 46-D, Chandigarh, wherein, Dr. Anshumaan V. Kapoor, Urologist and Andrologist, told that the Doctors of Opposite Party No.1 did not properly conduct the operation on him. However, such bald assertion, without any proof, could not be taken into consideration. No affidavit of Dr. Anshumaan V. Kapoor, Urologist and Andrologist aforesaid of Kapoor`s Kidney and Uro Stone Centre Pvt. Ltd., Sector 46-D, Chandigarh, was placed on the record, to the effect, that he examined the complainant, and found that the operation was not properly conducted on him, by the Doctors of Opposite Party No.1. Had Dr. Anshumaan V. Kapoor, Urologist and Andrologist, told the complainant that operation on him, by the Doctors of Opposite Party No.1, was not properly conducted, there would have been no hitch on his (Dr. Anshumaan V. Kapoor, Urologist and Andrologist) part, to submit his affidavit, in that regard. Had Dr. Anshumaan V. Kapoor, Urologist and Andrologist, submitted his affidavit, in that regard, the matter would have been different. Since the complainant left the Government Medical College Hospital, Sector 32, Chandigarh, against the advice of the Doctors, when he went there, on 16.02.2010 and was admitted, by no stretch of imagination, it could be said that it was a case of
“Certified that Mr. Manmohan Singh, 65 yrs male Regn. No.15241-02-2010 presented to us in OPD on 16.02.2010 on catheter with hematuria with h/o catheterization outside on 13.02.2010. He was admitted on 20.02.2010 and underwent Supra Pubic Catheterization for Stricture Urethra on 20.02.2010. He was discharged on catheter on 21.02.2010. He was advised Cystoscopy and proceed for VIU/BNI at later stage. He was admitted on 03.03.2010. He underwent Laser BNI on 03.03.2010. He was discharged on 04.03.2010”
27. From the afore-extracted portion of the certificate Annexure C-28 of Dr. Anshumaan V. Kapoor, Urologist and Andrologist of Kapoor`s Kidney and Uro Stone Centre Pvt. Ltd., Sector 46-D, Chandigarh, nothing is made out, that he stated anything, with regard to the factum, that the operation on the complainant by the Doctors of Opposite Party No.1, was not properly conducted. It is only evident from the said certificate, that the complainant went to the O.P.D of Kapoor`s Kidney and Uro Stone Centre Pvt. Ltd., Sector 46-D, Chandigarh, but was admitted there on 03.03.2010 and underwent Laser BNI on that date. This, in itself, goes to show that the complainant had no immediate problem. Had he been having any problem, with regard to passing of urine or swelling, he would have certainly been admitted by Dr. Anshumaan V. Kapoor, Urologist and Andrologist, on 16.02.2010. No help, therefore, can be drawn, by the Counsel for the appellant, therefrom.
28. In the final analysis, it is held thatexercised an ordinary degree of skill and competence, in conducting operation on the complainant and treating him, in the best possible manner, during the period he remained admitted in the
29. No other point, was urged, by the Counsel for theappellant, respondents no.2 and 4, and the Govt. Pleader for respondent no.1.
30. In view of the above discussion, it is held that the order of the District Forum, being based on the correct appreciation of evidence and law, on the point does not suffer from any illegality and perversity, warranting the interference of this Commission.
31. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs.
32. Certified Copies of this order be sent to the parties, free of charge.
33. The file be consigned to Record Room, after completion
Pronounced.
December 4, 2013
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[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
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(DEV RAJ)
MEMBER
Rg
STATE COMMISSION
(First Appeal No.)
Argued by:Sh. Gurdial Singh, Advocate for the applicant/appellant, alongwith Sh. Manmohan Singh, appellant, in person.
Sh.Jatinder Singh, Government Pleader for respondent no.1.
Sh.Raj Kumar Bashamboo, Advocate for respondents no.2 and 4, alongwith Dr.Vidhur Bhalla, respondent no.2 in person.
Opposite Party No.3 deleted by the District Forum, vide order dated 28.05.2012.
Dated the 4th
ORDER
At the time of arguments, the documents Annexure X (colly.), were sought to be placed, on record, by way of additional evidence by the appellant. These documents could be procured and produced, by the appellant/complainant, at the time, he was leading evidence, in the District Forum. However, there is nothing, on record, to establish, as to what prevented the appellant/complainant, from procuring and producing the documents Annexure X (colly.), on record, in the District Forum, at the time of leading evidence. The appellant wants to fill in the lacunae, left in his case, by seeking permission to lead additional evidence. Had due diligence, been exercised, by the appellant/ complainant, at the relevant time, then the said documents Annexure X (colly.), would have been procured and produced before the District Forum. It is a well settled principle of law, that no party can be allowed to fill in the lacunae, in his case, at the appellate stage. In case, at this stage, the application for placing, on record, documents Annexure X (colly.), by way of additional evidence, is allowed, that will delay the disposal of the appeal, thereby defeating the very purpose of the provisions of Section 19A, of the Consumer Protection Act, 1986, stipulating the specific time, for the disposal of Consumer Disputes. Thus, there is no justification, whatsoever, to allow the placing, on record, documents Annexure X (colly.), by way of additional evidence, at this stage. The application is, accordingly, dismissed.
2. Arguments, in the main appeal already heard.
3. Vide our detailed order of the even date, recorded separately, this appeal has been dismissed, with no order as to costs.
4. Certified copies of this order, be sent to the parties, free of charge.
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(DEV RAJ) MEMBER | (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT |
Rg
