Punjab

Moga

CC/15/46

Ramesh Gill - Complainant(s)

Versus

Harjinder Singh Sidhu - Opp.Party(s)

Sh.B.S.Gill

20 Sep 2017

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

 

                                                                                      CC No. 46 of 2015

                                                                                      Instituted on: 17.07.2015

                                                                                      Decided on: 20.09.2017

 

Ramesh Gill wife of Sh. Raj Kumar Gill, resident of V.P.O Bagha Purana, District Moga.

                                                                                ……… Complainant

 

Versus

1.       Harjinder Singh Sidhu, Proprietor, Amrit Hospital, Sant Nagar, Amritsar Road, Moga.

 

2.       Dr. Ranpinder Kaur, c/o Amrit Hospital, Sant Nagar, Amritsar Road, Moga.

 

3.       Amrit Hospital, Sant Nagar, Amritsar Road, Moga through its Proprietor Dr.Harjinder Singh Sidhu.

 

4.       The New India Assurance Company Limited, Branch office, 1^st Floor above Vijay Bank 195 Sotiganj, Meerut, Uttar Pradesh- 250001. 

 

                                                                           ……….. Opposite Parties

 

 

Complaint U/s 12 of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President

                   Smt. Vinod Bala, Member

                   Smt. Bhupinder Kaur, Member

 

Present:       Sh. Balwinder Singh Gill, Advocate Cl. for complainant.

                   Sh. Arun Tayal, Advocate Cl. for opposite party nos.1 to 3.

                   Opposite party no.4 ex-parte.

 

 

ORDER :

(Per Ajit Aggarwal,  President)

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the "Act") against Harjinder Singh Sidhu, Proprietor, Amrit Hospital, Sant Nagar, Amritsar Road, Moga and others (hereinafter referred to as the opposite parties) directing them to return the amount of Rs.50,000/- i.e. expenses charged by them from complainant towards surgery conducted by them. Further opposite parties may be directed to pay Rs.5,00,000/- i.e. the expenses incurred by the complainant in CMC Hospital, Ludhiana only due to the act and conduct of the opposite parties. Further opposite parties may be directed to pay Rs.10,00,000/- towards compensation due to deficiency in service and unfair trade practice on their part and Rs.11,000/- as legal expenses to the complainant or any other additional or alternative relief which the complainant may be found entitled in the facts and circumstances of the case may also be awarded in favour of the complainant and against the opposite parties.

2.                Briefly stated the facts of the case are that the complainant was having stone in her gallbladder and she was got admitted in the hospital of opposite parties no.1 on 03.06.2015 for the purpose of Laproscopic Surgery for removal of stone. After the admission, the opposite party nos.1 & 2 started the process of surgery on the basis of the previous test reports and without getting any latest test reports. However, the complainant was under the impression that the opposite party nos. 1 & 2 are educated and degree holder doctors and they will do each and every act as per medical ethics, but this surprise increased when the opposite party nos.1 & 2 conducted open surgery without getting the consent of the complainant or any of her attendants present there, whereas the complainant was got admitted for Laproscopic Surgery instead of open surgery and this fact was not disclosed to the complainant or any of her attendants. This fact came to the knowledge of complainant on 05.06.2015 when after the surgery, the complainant was feeling great pain and then the enquiry was made from the opposite parties that as to why the complainant is suffering from great pain because the surgery was Laproscopic which does not give more pain, but the opposite parties disclosed that they have conducted open surgery instead of Laproscopic surgery and this act of opposite parties was totally illegal and against the medical ethics and norms. The complainant was discharged from hospital on 07.06.2015 and the opposite parties charged an amount of Rs.50,000/- as charges for surgery. Besides this an amount of Rs.50,000/- was incurred on medicines and special diet etc. during her stay in the opposite party' hospital. The complainant was called for opening of stitches on 10.06.2015. On 10.0.6.2015 when the opposite parties were opening the stitches, then stool was coming from one stitch. On 10.06.2015 the opposite parties told that again a minor surgery will have to be conducted because there is complication in the earlier surgery and the opposite parties demanded Rs.50,000/- for the same. Being not satisfied with the opposite parties, the complainant was taken to Dr. Mittal for the ultrasound, who referred the complainant to some reputed and renowned hospital, because the condition of the complainant was very critical. As per the advise of doctor, the complainant was got admitted in CMC Hospital, Ludhiana on 11.06.2015 where again a surgery was conducted on 12.06.2015 and it was found by the doctors of CMC Hospital, Ludhiana that the earlier surgery was not conducted properly and so many veins were ruptured by the opposite parties wrongly stitched by the opposite parties, which is incurable. Due to this act and conduct of the opposite parties the situation of the complainant was still critical and she was lying admitted in ICU of CMC Hospital, Ludhiana and it all had happened due to the act and conduct of the opposite parties. The complainant came to know such like wrong acts were committed by the opposite parties with many other patients, who already die, but the opposite parties had been able to cover up the matter with the help of money. The complainant sent a legal notice dated 17.06.2015 to the opposite parties, but the opposite parties failed to comply with said legal notice. Due to the act and conduct of the opposite parties, the complainant had suffered undue mental tension, harassment, agony. Humiliation and financial loss. The act of opposite parties amounts to deficiency in service and unfair trade practice on the part of opposite parties. Hence this complaint.

3.                Upon notice, opposite parties nos.1 to 3 appeared through counsel and filed written reply taking certain preliminary objections that the present complaint is an abuse of the process of law qua answering opposite parties; that the present complaint is baseless, frivolous and has been formulated on wrong and misleading facts and wrongful representation of the medical practices; that the present complaint is not maintainable as medical opinion was not taken by this Forum by the competent doctor or committee of doctors specialized in the field before issuing the notice to answering opposite parties; that the complainant has utterly failed to prove any negligence on the part of answering opposite parties. There is no evidence documentary or otherwise which points out the medical error on the part of answering opposite parties is not treating the complainant as per medical procedures. Mere on the basis of the bald averments in the body of the complaint, no case is made out against the answering opposite parties; that no case of medical negligence is made out against the answering opposite parties, which warrants the allowing of the present complaint in favour of the complainant and against the answering opposite parties; that the complainant has not come before this Forum with clean hands and has concealed vital and material facts from this Forum. The complainant has presented an incorrect and wrong version of the facts and medical parlance, practices and procedure before this Forum, thereby attempted to misguide & mislead this Forum; that the present complaint under reply is not maintainable and is liable to be dismissed qua answering opposite parties as no cause of action either wholly or in part has ever arisen in favour of the complainant and against the answering opposite parties. The present complaint has been filed by the complainant only with a sole objective of harassing and blackmailing the answering opposite parties and to extort huge amount of money from the same without any material record; that the present complaint is not maintainable as there cannot be any medical negligence, if doctors perform their duties and exercise ordinary degree of, professional skill and competence, and Mere deviation from normal professional practice is not necessarily evidence of negligence.

                   Further in preliminary submissions, it is submitted that treating doctor i.e. the opposite party no.1 i.e. Dr. Harjinder Singh Sidhu is a well-known medical practitioner (Surgeon) and is a renowned and senior surgeon and has done various successful Surgeries in his long span of career. The said doctor is a respectable and a law-abiding citizen and has always treated his patients with utmost due care and followed all the medial ethics in true spirit and has rendered the true service to humanity. The opposite party no.3 i.e. M/s Amrit Hospital is a well Minimal Access Surgery Centre with an experience of more than 5000 Lap. Surgeries which include laparoscopic abdominal surgery like Gall Bladdar, Appendix, Hernia, Hysterctomy, Ovarian tumors and ectopic pregnancies etc. The doctor at the opposite party no.3 hospital is having substantial experience and skills to administer treatments to his patients admitted at the opposite party no.3 hospital. He is a respectable and a law-abiding citizen and has always treated his patients with utmost due care and followed all the medical ethics in true spirit and has rendered the true service to humanity. The patient/complainant Ramesh Rani was admitted on 03.06.2015 for Gall Stone Operation. She was posted for Laparoscopic Cholecystectomy. Pre-operative Ultra Sound was done showing Chronic Cholecystitis. Haematological Investigation and ECG performed was found to be normal. She was found fit for the operative procedure. The Laparoscopy Procedure its outcome complications and risks involved was explained to the patient and the relatives. The Laparoscopy Procedure was under taken, but due to lots of adhesions at calot's triangle, the vascular and biliary structures were unindentifiable it was converted into open Cholecystectomy Drain was put in Morrison's pouch to monitor any biliary or Gut content leakage. The written consent of the patient/complainant and her daughter, before surgery was obtained after explained the risks involved in the treatment. Moreover, the opposite party no.1 has operated 116 cases of Gall Bladder Stone in one present year from 1^st August 2014 till 31^st July, 2015, out 116 cases, 115 cases of Gall Bladder Surgery was done laparoscopically only one case of the said patient/complainant was converted into open Cholecystectomy. Incidence of conversion from Laparoscopic Cholecystectomy to open Cholecystectomy is only 0.86%  which fall well within university of Mary Land Guidelines of 5% conversions as mentioned on page no. 142-143, Surgical Laparoscopy Update by Karl A. Zucker. During post-operative 2^nd day i.e. 04.06.2015, the patient was having no vomiting no fever abdomen soft, passed flatus drain showing 100 ml of serous discharge was emptied Patient was allowed liquid orally with one or two biscuits and made ambulatory on 3^rd day i.e. 05.06.2015 patient was allowed Liquid with semi solids. Drain showed no discharge hence removed. On 4^th day i.e. 06.06.2015 patient was advised liquid semi solids. On 5^th day i.e. 07.06.2015 patient abdomen was soft advised for take liquid semi solids, Dal Roti etc. and was discharged with satisfactory condition and call for checkup and stitch removal on 10.06.2015. On 10.06.2015 the patient walked herself into OPD of the opposite party no.1, the opposite party no.1 enquired about her health condition for which she was fully satisfied. The opposite party no.1 took her along into minor OT for removal of stitches. She gave no history of vomiting fever or any abdominal pain her pulse blood pressure was normal. AS the opposite party no.1 removed the stitches the Umbilical Port showed slight biliary discharge, opposite party no.1 got suspicious of small bowel perforation, opposite party no.1 immediately conveyed to the patient and her husband and advised them admission for the management. Patient left the hospital on the pretext of going home and coming back after few hours. But instead Patient went to M/s Satya Paul Mittal Hospital, Moga, Dr. Navraj Singh examined her and ultra sound was performed which turned out to be normal, patient requested to Dr. Navraj Singh to refer them to CMC & Hospital, Ludhiana which Dr. Navraj Singh did. Even the patient came back to opposite party no.3 hospital on the same day 10.06.2015 at 8 pm for further treatment. The patient was readmitted, conservative line of treatment was explained to the patient and relative as patient had no vomiting fever no pain abdomen her heamotoligical investigations were normal ultra sound scan shoed no Intra-abdominal collection. Abdomen absolutely soft. Bowel movements positive, Patient passing Flatus, Stool, Orally Patient was taking Liquids and semi solids Dal Roti etc. All these parameter showed that Patient had no sepsis, peritonitis. The whole case was discussed with Dr. Satpal Singh Virk, M.Ch. Gastrosurgery Professor and Head, Deptt. Gastrosurgery DMC & Hospital, Ludhiana who also opined for conservative management of this low enterocutaneous fistula. These small gut fistulas of low output usually heal (close) in 40% cases in 4 to 6 weeks' time as mentioned on page 609 of 10^th Edition Maingot's Abdominal Operations Text Book followed worldwide. However, on 11.06.2015 at 3.45 pm the patient demanded discharge on request and henceforth discharged. She reached CMC & Hospital, Ludhiana on 11.06.2015 as mentioned in their own record, discharge summary, there was no other presenting symptoms except discharge from the umbilical port, on examination they found pulse Blood pressure normal Adbomen soft non tender no mass felt bowel sounds present except discharge from the umbilical port, her haemotoligical investigations were normal so significant collection in the abdomen seen on ultra sound scan and CECT abdomen, Extravasation of contract from proximal ileal loop through a track into the subcutaneous plane in supra-umbilical region suggestive of entrocutaneous fistula. Taking the note of all these investigation and her physical condition, as patient being ambulatory and taking orally, bowls movements normal, passing flatus and stool, no sign of sepsis or peritonitis, patient should have been managed conservatively. It is further submitted that from first day of operation i.e. 3.6.2015 till 12.6.2015 of second operation done at CMC & Hospital patient condition was stable heamdynamically no fever no vomiting, abdomen soft indicating no need of any emergency surgical intervention. Surgical intervention should have been waited for 4-6 week giving time for spontaneous closure of entrocutaneous fistula. But this surgical intervention further led to further complications as mentioned in her own discharge summary, leading to increase hospital stay and financial burden. In the discharge summary, it is mentioned that post operatively she continue to had faeculent discharge from the midline laprotomy wound making how output entrocutaneous fistula before operation into high output entrocutaneous fistula which endangered the life of the patient, her loop stoma created by surgical procedure did not functioned leading to this grave faeculent discharge from the midline laprotomy wound (high output entrocutaneous fistula).

                   That Bowl injury as a complication of Laparoscopic surgery study is well evaluated and documented in British Journal of surgery 2004; 91:1253-1258. Of the total evaluated 29532 procedures 105 bowel injuries occurred i.e. 0.36% small intestine was most frequently effected (227 injuries; 55.8%). The laparoscopic instruments that caused injury are summarized in table 5. On page 1256 Bowel injuries occurred most frequently (41.8%) during the access phase of laparoscopy, inflicted by insertion of a veress needle or a trocar. The said complication occurred during the access phase of umbilical port by the guided Trocar. The rate of bowel injury during laparoscopic Cholecystectomy is between 0 to 0.4% in reported cases. The jejunum ileum and colon are susceptible to Veress needle and Trocar injury as mentioned on page 127 of Text Book "Laparoscopic Surgery of Abdomen by Bruce V.MacFadyen, Jr. Senior Editor". Keeping in view the above stated procedure along with reference, Well documented studies and Text Books of world Repute it’s a case of insignificant, very low output entero-cutaneous fistula of ileum (small gut), a complication of laparoscopic surgery, could have been managed well by conservative treatment (as 7% cases were managed conservatively as show in the current study). It is further submitted that supporting medical literature and other documents can be submitted at the time of evidence before this Forum. Answering opposite party nos.1 to 3 are not proper party to the complaint. Opposite party no.2 also submitted that she has no relation with the alleged allegations made against her in the alleged complaint as the said opposite party did not give any treatment of surgery to the patient/complainant.

                   On merits, all other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with against answering opposite parties has been made.

4.                It is noteworthy that on 10.09.2014 counsel for opposite party nos.1 to 3 and moved and application for impleading Insurance company, CMC & Hospital Ludhian and Dr. Anil Luther as parties to the present complaint. Reply to that application has also been filed by complainant. That application was partly allowed with the finding that "In view of the foregoing discussion, it becomes amply clear that insurance company is necessary party to the present litigation while the remaining parties sought to be arrayed as party to the present complaint are neither necessary nor proper parties. As such the instant application partly succeeds and insurance company i.e. New India Assurance Company Limited is ordered to be arrayed as opposite party no.4 to the instant complaint.". Thereafter notice of the complaint was issued to opposite party no.4. But the same was not received back either served or un-served. As such, after expiry of statutory period of 30 days, opposite party no.4 was proceeded against ex-parte.

5.                In order to prove the case, complainant tendered in evidence his duly sworn affidavit as Ex.C-1 and copies of documents Ex.C-2 to Ex.C-116 and closed the evidence. 

6.                On the other hand, opposite party nos.1 to 3 tendered in evidence affidavit of Dr. Harjinder Singh Sidhu Ex.OP-1,2,3/1 and affidavit of R.Satpal Singh Virk, Ex.OP-1,2,3/2 and copies of documents Ex.OP-1,2,3/3 to Ex.OP-1,2,3/16 and closed the evidence.

7.                We have heard ld. counsel for the parties and have very carefully gone through record placed on file.

8.                The case of the complainant is that she was having stone in her gallbladder. She was got admitted in the hospital of opposite parties on 03.06.2015 for the purpose of Laparoscopic Surgery for the removal of stone. After admission, the opposite parties started the process of surgery on the basis of previous test reports without getting any fresh test reports. Opposite parties doctor advised her for laparoscopic surgery. Complainant and her family gave consent for laparoscopic surgery. However, during the surgery opposite party nos.1 & 2 conducted open surgery instead of laparoscopic surgery without getting consent of complainant or any of the attendants present there, whereas the complainant was admitted for laparoscopic surgery and this fact was not disclosed to the complainant or any of her attendants. This fact came to the knowledge of complainant on enquiry from the opposite parties, when she felt severe pain despite getting laparoscopic surgery, because it does not give more pain. The opposite parties disclosed that they have conducted open surgery instead of laparoscopic surgery. This act of opposite parties was totally illegal and against the medical ethics and norms. The complainant was discharged from the hospital on 07.06.2015 and opposite parties charged Rs.50,000/- for the said surgery besides this Rs.50,000/- was incurred on medicines and special diet etc. during her stay in the hospital. The complainant was called for opening the stitches for 10.06.2015. On 10.06.2015 when the opposite parties were opening the stitches then stool was coming from the stitches, then the opposite parties told that again a minor surgery will have to be conducted as there is complication in the earlier surgery and demanded Rs.50,000/- for the same. Being not satisfied with the opposite parties, the complainant was taken to Doctor S.P. Mittal Hospital, Moga for ultrasound, who referred complainant to some reputed and renowned hospital, as the condition of the complainant was very critical. On advise of the said doctor, she was got admitted in CMC Hospital, Ludhiana on 11.06.2015, where again a surgery was conducted on 12.06.2015 and it was found by the doctors of CMC Hospital that earlier surgery was not conducted properly and veins were ruptured because of wrongly stitched by the opposite parties, which is incurable. Due to this act and conduct of the opposite parties the condition of the complainant was still critical. All this happened due to the negligent act and conduct of the opposite parties. The complainant also came to know that such like wrong acts were also committed by opposite parties with many other patients who already died, but the opposite parties had been able to cover up the matter with the help of money. Due to the negligent act and conduct of opposite parties, the complainant has suffered undue mental tension, harassment, agony, humiliation and financial loss as well as physical loss. All these acts of opposite parties, amounts to negligence, deficiency in service and unfair trade practice on their part.

9.                On the other hand, ld. Counsel for opposite party nos.1 to 3 argued that complaint filed by the complainant is baseless, frivolous and has been formulated on wrong and misleading facts. The present complaint is not maintainable as medical opinion was not taken by this Forum from the competent doctor or committee of doctors specialized in the field before filing the present complaint. The complainant has failed to prove any negligence on the part of opposite parties. There is no evidence, which points out the medical error on the part of opposite party nos.1 to 3 in treating complainant as per medical procedures. Mere on the basis of bald averments in the body of the complaint no case is made out against the opposite party nos.1 to 3. The complainant has not come to this Forum with clean hands and concealed true and material facts. She attempted to misguide and mislead this Forum. The present complaint has been filed only with a sole objective of harassing and blackmailing the opposite parties and to extort huge amount of money from them. The treating doctor i.e. opposite party no.1 i.e. Dr. Harjinder Singh Sidhu is a well-known medical practitioner (surgeon) and is a renowned and senior surgeon and has done various successful surgeries in his long span of career. The hospital of opposite parties is very reputed hospital in the area with an experience of more than 5000 Lap surgeries. The patient/complainant Ramesh Rani wad admitted on 03.06.2015 for Gall Stone Operation. She was posted for Laparoscopic Cholecystectomy. Pre-operative Ultra Sound was done showing Chronic Cholecystitis. Haematological Investigation and ECG performed was found to be normal. She was found fit for the operative procedure. The Laparoscopy Procedure its outcome complications and risks involved was explained to the patient and the relatives. The Laparoscopy Procedure was under taken, but due to lots of adhesions at calot's triangle, the vascular and biliary structures were unidentifiable, so it was converted into open Cholecystectomy Drain was put in Morrison's pouch to monitor any biliary or Gut content leakage. The written consent of the patient/complainant and her daughter, before surgery was obtained after explained the risks involved in the treatment. Opposite party no.1 has operated 116 cased of Gall Bladdar stone in the past year and only one case of the complainant was converted into open Cholecystectomy. The incident of conversion from  laproscopic Cholecystectomy to open cholecystectomy is only 0.86% which fall well within university of Mary Land Guidelines of 5% conversions as mentioned on page no. 142-143, Surgical Laparoscopy Update by Karl A. Zucker. During post-operative 2^nd day i.e. 04.06.2015, the patient was having no vomiting no fever abdomen soft, passed flatus drain showing 100 ml of serous discharge was emptied Patient was allowed liquid orally with one or two biscuits and made ambulatory on 3^rd day i.e. 05.06.2015 patient was allowed Liquid with semi solids. Drain showed no discharge hence removed. On 4^th day i.e. 06.06.2015 patient was advised liquid semi solids. On 5^th day i.e. 07.06.2015 patient abdomen was soft advised for take liquid semi solids, Dal Roti etc. and was discharged with satisfactory condition and call for checkup and stitch removal on 10.06.2015. On 10.06.2015 the patient walked herself into OPD of the opposite party no.1, the opposite party no.1 enquired about her health condition for which she was fully satisfied. The opposite party no.1 took her along into minor OT for removal of stitches. She gave no history of vomiting fever or any abdominal pain her pulse blood pressure was normal. AS the opposite party no.1 removed the stitches the Umbilical Port showed slight biliary discharge, opposite party no.1 got suspicious of small bowel perforation, opposite party no.1 immediately conveyed to the patient and her husband and advised them admission for the management. Patient left the hospital on the pretext of going home and coming back after few hours. But instead Patient went to Dr. Satya Paul Mittal Hospital, Moga, Dr. Navraj Singh examined her and ultra sound was performed which turned out to be normal, patient requested to Dr. Navraj Singh to refer them to CMC & Hospital, Ludhiana which Dr. Navraj Singh did. Even the patient came back to opposite party no.3 hospital on the same day 10.06.2015 at 8 pm for further treatment. The patient was readmitted, conservative line of treatment was explained to the patient and relative as patient had no vomiting fever no pain abdomen her heamotoligical investigations were normal ultra sound scan shoed no Intra-abdominal collection. Abdomen absolutely soft. Bowel movements positive, Patient passing Flatus, Stool, Orally Patient was taking Liquids and semi solids Dal Roti etc. All these parameter showed that Patient had no sepsis, peritonitis. However, on 11.06.2015 at 3.45 pm the patient demanded discharge on request and henceforth discharged. She reached CMC & Hospital, Ludhiana on 11.06.2015 as mentioned in their own record, discharge summary, there was no other presenting symptoms except discharge from the umbilical port, on examination they found pulse Blood pressure normal Adbomen soft non tender no mass felt bowel sounds present except discharge from the umbilical port, her haemotoligical investigations were normal so significant collection in the abdomen seen on ultra sound scan and CECT abdomen, Extravasation of contract from proximal ileal loop through a track into the subcutaneous plane in supra-umbilical region suggestive of entrocutaneous fistula. Taking the note of all these investigation and her physical condition, as patient being ambulatory and taking orally, bowls movements normal, passing flatus and stool, no sign of sepsis or peritonitis, patient should have been managed conservatively. It is further submitted that from first day of operation i.e. 3.6.2015 till 12.6.2015 of second operation done at CMC & Hospital patient condition was stable heamdynamically no fever no vomiting, abdomen soft indicating no need of any emergency surgical intervention. Surgical intervention should have been waited for 4-6 week giving time for spontaneous closure of entrocutaneous fistula. But this surgical intervention further led to further complications as mentioned in her own discharge summary, leading to increase hospital stay and financial burden. In the discharge summary, it is mentioned that post operatively she continue to had faeculent discharge from the midline laprotomy wound making low output entrocutaneous fistula before operation into high output entrocutaneous fistula which endangered the life of the patient, her loop stoma created by surgical procedure did not functioned leading to this grave faeculent discharge from the midline laprotomy wound (high output entrocutaneous fistula). The treatment was given by opposite party nos.1 to 3 as per medical guidelines. The opposite parties done their best which can do and they performed their duty perfectly. There is no negligence on their part and the present complaint may be dismissed with special costs. To prove his case, the complainant produced on record copy of discharge card issued by opposite party hospital as Ex.C-5, ultra sound report done by Satya Pal Mittal Hospital Ex.C-6, discharge summary of CMC hospital is Ex.C-7 showing the date of admission 11.06.2015 and date of discharge as 14.07.2015 with remarks final diagnosed Entero-cutaneous fistula. Status laparoscopic converted into open cholecystectomy and in Presenting symptoms and brief history mentioned that status laparoscopic converted to open cholecystectomy on 3.6.2015 (outside) presented with chief complaints of Faeculent discharge from umbilical port site x 1 day. Further under heading Treatment mentioned that Exploratory laparotomy + loop ileostomy + adhesiolysis done under GA on 12.6.15 and under Operative Findings mentioned that 0.5 x 0.5 cm perforation in terminal ileum surrounded by fecal matter, tract was extending into the s/c tissue and out through the supra-umbilical port incision; Bowel surrounding the perforation edimatous, thickened and friable; Dense inter loop adhesions, loop of ileum containing the perforation adherent to abdominal wall and pelvis; latrogenic serosal tear over terminal ileum. Further under Course in Hospital mentioned that complainant was admitted with diagnosis of enterocutaneous fistula. She underwent Exploratory laparotomy + loop ileostomy + adhysiolysis under GA on 12.6.15. Post operatively she continued to have faeculent discharged from the midline laparotomy wound. She was kept NPO and was on TPN. Gradually she was started on Oral feeds. Her midline faeculent discharge was converted to low output fistula and was controlled. At present she is tolerating normal high protein diet orally, afebrile, ambulating, pain free and is being discharged in a satisfactory condition with a loop stoma and low-output controlled enterocutaneous fistula through midline wound with stoma bag.

10.              Ld. Counsel for complainant argued that due to negligence of opposite party nos.1 to 3, the complainant suffered multiple holes in the intestine and stool came out from the holes, which make the condition of the patient worst and create danger to her life. The complainant paid Rs.50,000/- to opposite party nos.1 to 3 for her surgery in their hospital. Further he spent more than Rs.5 lakhs for his treatment in CMC Hospital, Ludhiana, copies of bills and receipts of hospital and medicines are Ex.C-8 to Ex.C-112 and Ex.C-114 to Ex.C-116. As per medical advise, she still have to undergo further treatment and surgery and special diet for which doctor estimated the expenses more than Rs. 2 lakh. To prove her version, she produced the certificate issued by CMC Hospital, Ludhiana, where the doctors submitted that the approximate cost of further treatment of Mrs. Ramesh Gill will be Rs.1.5 lac and require hospitalization of 7 days, copy of which is Ex.C-113. Ld. Counsel for complainant argued that from all these documents and medical record of CMC and Hospital, it is clear that the complainant has suffered great physical loss due to wrongful acts of the opposite parties. Ld. counsel for the opposite parties argued that the complainant has not produced any expert opinion to prove that there is any negligence on the part of opposite parties, which is mandatory to prove the medial negligence on the part of doctor. On it, ld. counsel for complainant argued that where the negligence of the doctor is clearly proved from the other medical record and further treatment record, there is no necessity to prove the medical negligence by way of expert opinion. He argued that to prove the medical negligence on the part of doctors, there is no need to get the opinion of expert. On this point, he put reliance on judgment passed by our Hon’ble Apex Court in Civil Appeal No. 2641 of 2010 date of decision 8.03.2016 titled as V. Kishan Rao Vs Nikhil Super Speciality Hospital & Another, wherein our Hon’ble Apex Court held that A.Consumer Protection Act, 1986, Sections 23 and 3-Medical negligence – Claim of petitioners can not be rejected only on the ground that expert witness was not examined to prove negligence of Doctor – It is not required to have expert evidence in all cases of Medical negligence. 1. There is no law to have expert evidence in all cases of medical negligence. 2. In most of the cases the question whether a medical practitioner or the hospital is negligent or not is a mixed question of fact and law and the Fora is not bound in every case to accept the opinion of the expert witness. 3. There may be simple cases of medical negligence where expert evidence is not required.4. Those cases should be decided by the Fora under the said Act on the basis of the procedure which been prescribed under the said Act. Medical Negligence-Onus to prove – In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself – In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charges of negligence. The real issue is, whether the complainant has been able to discharge the onus of medical negligence? Further, it is to be seen, whether the maxim ‘res ipsa loquitur’ (the thing speaks for itself) is applicable in the present case? The application of the maxim in medical negligence cases can be with a caveat that it can only be applied if the alleged negligence is derived from something absolute and the occurrence could not reasonably have taken place without negligence.

                   The general rule is that he/she, who asserts, must prove. In the present case initially it was the duty of the complainant to prove that the damage to her was caused due to the negligence of opposite party-Hospital. There is failure on the part of doctors and supporting staff to adhere to the ordinary level of skill and diligence possessed and exercised at the same time by them. It is true that medical professionals are not expected to be of highest possible degree of professional skills, but they are bound to employ reasonable skill and care. Now the question remains, whether the opposite party and its staff exercised reasonable skill and care, in other words whether or not the medical staff of opposite party-Hospital fell below the standard of a reasonably competent professional in their field?

                   The maxim ‘res ipsa loquitur’ is used to describe the proof of facts which are sufficient to support an inference that the opposite party was negligent and thereby to establish a prima facie case against it. It is not a presumption of law, but a permissible inference, which Court may draw, if upon all the facts, it appears to be justified. It is invoked in the circumstances, when the known facts relating to negligence consists of the occurrence itself or where occurrence may be of such a nature as to warrant an inference of negligence. The maxim alters neither the incidence of onus nor the rules of pleading.

                   In case “Malay Kumar Ganguly Vs Dr. Sukumar Mukherjee & Ors.”, 2009(4) RCR (Criminal)-1(SC), Hon’ble Supreme Court dealt with the criminal negligence and civil negligence, opinion of expert witness and in Para no.48, observed as follows:- “48. In Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Others, 2009(3) RCR (Criminal)- 124: 2009(3) RCR (Civil)-174 : [2009(7)SCALE-407], this Court held as under:-

“32. We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence.

11.              Ld. counsel for opposite parties further argued that as per medical researches this type of injury is common in case of laparoscopic surgery for the removal of gall bladder. However, as per medical literature produced by the opposite parties themselves Laparoscopic Surgery of the Abdomen by Bruce V. MacFadyen, Jr. Senior Editor, copy of which is Ex.OP-1,2 3/12, in this study under the heading Bowel Injury During Laparoscopic Cholecystectomy it is mentioned that "Injury to  alimentary tract can occur during trocar insertion of dissection in the right upper quardrant, especially when using electrosurgical devices. The jejunum, ileum and colon are susceptible to Veress needle and trocar injury, whereas the duodenum is more likely injured while exploring the triangle of Calot. Meckel's diverticula and urachal remnants that remain fixed to the umbilicus are particularly susceptible to injury during peritoneal access. The rate of bowel injury is between 0% and 0.4% in reported series, but this incidence appears to be decreasing. Series reporting 0% incidence of bowel injury used the open technique in obtaining peritoneal access. In contract, the enterotomy rate in a series of 1200 consecutive open cholecystectomies by Morgenstern et al. in the 1980s was 0.17%." Further in the study Laparoscopic Surgery of the Abdomen under the heading Bowel Injury as a complication of laparoscopy, it is mentioned that Bowel Injury as a complication of laparoscopy. It has been further mentioned as follows:-

Background: Bowel injury is a rare but serious complication of laparoscopic surgery.

They found conclusion that at 0.13 per cent, the incidence of laparoscopy-induced bowel injury is small and such injury is usually discovered during the operation. Nevertheless, laparoscopy-induced bowel injury is associated with a high mortality rate of 3.6 per cent.

 

                   So, the version of the opposite parties that this type of injury in laparoscopic surgeries is common and can be cured by conservative management and there is no deficiency in service on the part of opposite parties have no legs, as from the perusal of medical study produced by themselves, it is clear that it is very rare incident and there is about 0.13 per cent chances of bowel injury in such type of surgeries. Moreover, as per study such type of injury is usually discovered during the operation and can be cured and treated at the very time. But in the present case, the opposite parties failed to find injury at the time of operation and intentionally put stitches and later on it come to their notice that stool comes out from the stitches with foul smell. The opposite parties failed to give proper treatment to complainant and to cure the injury, rather they demanded more money. Due to serious complication to threat the life of the complainant, she had to admit in CMC Hospital, Ludhiana and remained there for more than a month and a fresh surgery was conducted on her. All these acts of opposite parties, amounts to negligence, deficiency in service and unfair trade practice on their part. The opposite parties failed to do their duty skilfully.

12.              From the above discussion, arguments of both the parties and evidence produced by the parties and medical literature and case law produced by ld. counsel for the complainant, we come to the conclusion that opposite party nos. 1 to 3 have not provide proper advised to complainant and due to the negligent behaviour of the opposite parties, the complainant has to undergone another surgery. All these acts of opposite party nos.1 to 3 amounts to negligence and unfair trade practice on their part. Hence the present complaint is allowed against opposite party nos.1 to 3 and dismissed against opposite party no.4.

13.              At this stage, ld. counsel for opposite party nos.1 to 3 argued that opposite party nos.1 to 3 got themselves insured from opposite party no.4 i.e. insurance company under Professional Indemnity Insurance Policy and as per this policy if there is any loss occurred to them during he course of their profession, then opposite party no.4 will indemnify them for that loss and if any compensation is to be granted to complainant then it should be recovered from opposite party no.4. On it, ld. counsel for complainant argued that there is no privity of contract between the complainant and opposite party no.4 and there is contract, if any, regarding the insurance is between the opposite party nos.1 to 3 and opposite party no.4 and it is their own matter and complainant is nothing to do with it. The complainant has every right to get compensation amount from opposite party nos.1 to 3 and not from opposite party no.4. If there is any contract regarding the indemnify Profession loss with the opposite party no.4, then the opposite party nos.1 to 3 can claim this amount from opposite party no.4 directly after paying it to the complainant. From the perusal of schedule of Professional Indemnity Insurance policy produced by opposite party nos.1 to 3 as Ex.OP-1,2,3/14 to OP-1,2,3/16, it is observed that it is Professional Indemnify Insurance Policy meaning thereby that if the opposite party nos.1 to 3 had to suffer any loss during the course of their profession, then they can claim it from the insurance company and insurance company is liable to indemnify the loss to opposite party nos.1 to 3 as per terms and conditions of the policy. Vide this policy third person cannot claim directly any amount as compensation from the company. Opposite party nos.1 to 3 can claim this amount from insurance company after paying it to the third party. Hence the arguments of the opposite party nos.1 to 3 has no footing. As such, opposite party nos.1 to 3 are directed to pay Rs.50,000/- the amount spent by complainant on her treatment in the hospital of opposite party nos.1 to 3 and to pay Rs.5,00,000/-(Five lakh only) spent by the complainant for her further treatment, surgery and medicines at CMC Hospital, Ludhiana. Opposite party nos.1 to 3 are further directed to pay Rs.2,00,000/-(Two lakh only) to complainant for her pre and post operative medicines, medical expenses and further treatment and special diet etc. with interest @ 9% per annum from the date of filing of present complaint i.e. 17.07.2015 till final realization. Further opposite party nos.1 to 3 are directed to pay Rs.5,00,000/-(Five lakh only) to complainant for permanent loss to her health, mental tension, agony and harassment suffered by her and Rs.10,000/-(Ten thousand only) as litigation expenses to the complainant. However, opposite party nos.1 to 3 are at liberty to claim this amount from opposite party no.4 after payment of this amount to complainant as per terms and conditions of their insurance policy. Complaint against opposite party no.4 stands dismissed. Compliance of the order be made within 30 day from the receipt of copy of this order, failing which, the complainant shall be entitled to initiate proceedings under section 25 & 27 of the Consumer Protection Act. Copy of the order be supplied to the parties, free of costs. File be consigned to record room.

Announced in Open Forum

Dated: 20.09.2017

                             (Bhupinder Kaur)          (Vinod Bala)             (Ajit Aggarwal)                 

                                 Member                       Member                     President