Charanjit Singh, President
1 The complainant has filed the present complaint by invoking the provisions of Section 12 and 13 of the Consumer Protection Act against the opposite parties on the allegations that the complainant is student and on 8.5.2018, he suddenly fell severe pain in his abdomen and as such he approached the opposite party No. 1 for treatment and Diagnosis and the opposite party No. 1 immediately admitted the complainant in his hospital and on next day i.e. 9.5.2018 the complainant was referred for Ultrasonography report (whole Abdomen) to Sigma Scan Centre Tarn Taran, where this Sonography was conducted upon him and as per the report the complainant was suffering from Acute Appendicitis. The opposite party No. 1 after going through the report of Sonography dated 9.5.2018 advised surgery of complainant’s abdomen for this problem of acute appendicitis and as such, the complainant as well as his parents agreed for the surgery and the opposite party No. 1 conducted the surgery upon the complainant. Inspite of surgery of the complainant by the opposite party No. 1, the health of the complainant continued to deteriorate and new complicacies arose in the health of the complainant and as such, the complainant informed it to the opposite party No. 1 who continued to provide treatment to the complainant but all in vain. The condition of the complainant was became so serious that he was feeling that he was going to die due to the poor health, so this was also informed to the opposite party No. 1 by him who continued his treatment upon the complainant for 3/4 days and again referred the complainant for the same ultrasonography report of his whole abdomen which was got conducted by Sigma Scan Centre upon the complainant on 14.5.218 and the complainant was astonished to see the report of this sonography test whereby it was found that the multiple distended gut loops were seen all over the abdomen of the complainant alongwith free fluid in the right side of pelvic cavity and on going through the report the opposite party No. 1 told the complainant that the disposal pipe/ latrine pipe of the complainant was actually go cut during the surgery done by him on 9.5.2018 upon the complainant. The complainant and his parents told the opposite party No. 1 that the complicacies and deterioration of the health of the complainant has been the result of the negligence of the opposite party No. 1 and as such this party is wholly-solely responsible for his/ its negligence and as such responsible for compensation as well as for any mis-happening and as such, the opposite party No. 1 discharged the complainant on 14.5.2018 by saying that he can do nothing to rectify his negligent act and also could not pay anything as compensation for this negligence and also for any mis-happening. The opposite party No. 1 forcibly received Rs. 20,000/- for the expenses of treatment and medicines from the complainant and his parents while discharging from him, inspite of the fact that the opposite party No. 1 had acted in a negligent manner while conducting surgery upon the complainant resulting in causing complicacies in the health of the complainant. The complainant and his parents decided to obtain treatment from some other hospital and as such, the complainant was admitted with the opposite party No. 2 on the same day i.e. 14.5.2018, where the treatment of the complainant was got conducted by this party, although the condition of the complainant was very serious at that point of time due to the negligence of the opposite party No. 1. The opposite party No. 2 conducted three surgeries upon the complainant so to provide him treatment due to complicacies caused in his health due to the negligent treatment and surgery of the complainant and the complainant remained admitted in the hospital of the opposite party No. 2 for 4/5 times for getting these surgeries and these surgeries resulted in cutting almost whole of the body of the complainant and also resulted in severe pain and loss of health somewhat of permanent nature. Moreover, the complainant had to send Rs. 4,15,663/- on his treatment with the opposite party No. 2 which was the result of negligence of the opposite party No. 1. The complainant was having very good health which is very much obedient for which the documents annexed with the present complaint which prove the certificate from NCC and also from the Organizations which organize sports event. Moreover , the complainant was studying in +2 class and was having good scores in his education and there were bright chances that he could be recruited in Army. Moreover, the complainant is of very young age and due to the permanent loss of health due to number of surgeries, the chance of recruitment in any Armed Forces or anywhere have now become diminished and as such the future of the complainant has been thrown in to darkness due to negligence of the opposite party No. 1. The complainant and his family had to spend extra Rs. 4,15,663/- on his treatment which he had to obtain from opposite party No. 1 due to negligence of the opposite party No. 1. The complainant after getting discharged from the hospital of the opposite party No. 2 approached the opposite party No. 1 alongwith his parents so as to demand from him compensation of Rs. 15,30,000/- i.e. for permanent loss of health, future and physical pain and mental harassment which the complainant had suffered due to the negligence of the opposite party No. 1 during the treatment of complainant and also to demand Rs. 4,15,663/- which the complainant had to spend on the subsequent treatment from the opposite party No. 2 but the opposite party No. 1 did not pay any heed to this genuine demand of the complainant. The complainant has prayed that the following reliefs may be granted in favour of complainant.
- The opposite party No. 1 may be directed to pay Rs. 15,30,000/- as compensation for causing permanent loss of health of the complainant and also for destroying his future and also for causing physical pain and harassment.
- The opposite party No. 1 may kindly be directed to pay Rs. 4,15,663/- i.e. the expenses incurred by the complainant on the subsequent treatment paid to the opposite party No. 2 due to negligence of the opposite party No. 1.
- It is further prayed an amount of Rs. 50,00/- as litigation charges may be awarded to the complainant in the interest of justice, equity and fair play.
Alongwith the complaint, the complainant has placed on record his affidavit Ex. C-1, Self attested copy of prescription of OP No. 1 Ex. C-2, Self attested copy of Ultrasonography report dated 9.5.2018 Ex. C-3, Self attested copy of Ultrasonography report dated 14.5.2018 Ex. C-4, Self attested copy of bills of treatment and medicines Ex. C-5, Self attested copy of Metric Certificate Ex C-6, Self attested copy of NCC Certificate dated 27.9.2015 Ex. C-7, Self attested copy of NCC Certificate dated 3.3.2016 Ex. C-8, Self attested copy of sports certificate Ex. C-9, Self attested coy of appreciation letter Ex. C-10.
2 After formal admission of the complaint, notice was issued to Opposite Parties and opposite party No. 1 appeared through counsel and filed written version by inter-alia pleadings that as per record of OP 1 (Ex. OP1/2) the patient Gurkirat Singh son of Hardeep Singh aged 18 years male resident of village Daleke, Tehsil and District Tarn Taran came to the OP No. 1 on 8.5.2018 in the afternoon with complaint of pain abdomen (around umbilicus & right iliac region) for the last 24 hrs. There was no history of chest pain, no history of convulsions, no history of diabetes mellitus, there was history of fever with vomiting 1-2 days (patient was still febrile at the time of being brought to the hospital), distention in abdomen was positive. On examination, there was no cyanosis, no jaundice; Cardio vascular system, Central Nervous System Chest all NAD; on local examination, it was found that there was abdominal history of the same for the last 24 hours given. Since there was suspicion of acute attack of acute appendicitis, the patient was immediately admitted by Dr. Joginder Singh Sandhu M.B.B.S., M.S. (General Surgery) who after stabilizing the patient overnight with proper medication including prophylactic antibiotic cover, advised ultrasound examination then next morning. After report of ultrasound examination, report of which gave finding of “SMALL Right Renal Calculus with….? Acute Appendicitis” Since for this condition of the patient, surgery was the standard line of treatment, thus after obtaining consent for treatment and surgical consent, the patient was further evaluated and investigated for the purpose of surgery. Thus investigations HS, TLC, DLC, BT, CT, B. Sugar and B. Urea, alongwith HIV, HCV, A Ag as well as ECG were got done. As per blood investigation reports, the patient was having infective pathology as well because the TLC & DLC had raised parameters (TLC 13,600/cumm with Polymorphs 63%. After getting the Pre-anesthesia checkup done, the patient was taken for the surgery on 9.5.2018 itself under all aseptic conditions in the fully equipped operation theatre of Harsukhman Hospital with Dr. Joginder Singh Sandhu as surgeon, with spinal anesthesia given by Dr. Balram. M.D. (Anaesthesia). During the course of surgery, pus and fluid were found in the right iliac fossa and pelvis which were washed. Appendix was identified which was found to be badly necrosed at its base. The appendix was separated and ligated. Necrosed tissue was removed, stump ligated and then covered with omentum. Abdomen was washed thoroughly, drain put in the iliac fossa, hemostasis achieved. Abdomen closed in layers and patient was shifted to the post-operative recovery from the operation theatre in good condition. The post operative diagnosis was “Acute Appendicitis with Necrosed/ Perforated Base with Pus Collection. On 9.5.2018, in the post operative period, the patient was still febrile but stable. The operative specimen (pus removed during surgery and the removed appendix with necrosed tissue) was handed over to the relatives for pus culture of the puss as well as histopathology examination of appendix with nerosed tissue) was handed over to the relatives for pus culture of the pus as well as histopathology examination of appendix & necrosed tissue from any clinical lab of their choice. The patient was given required post-operative treatment on standard lines with proper anti biotic cover. On the second post operative day (i.e. 10.5.2018), the fever subsided during the day, and the vitals became normal and the patient was passing urine. There was about 70 ml fluid in the drain by evening. On 11.5.2018, the patient was afebrile, passing urine, and passed flatus as well with all vital normal. No significant fluid came in the drain. On 11.5.2018, the patient was afebrile, passing urine, and passed flatus as well as with all vitals normal. No significant fluid came in the drain. On 12.5.2018 as well the patient was having all vitals normal passing urine and stools, and was put on liquid diet orally. The drain collection was almost Nil. On 13.5.2018 in the morning, the patient was having all vitals normal and was ambulatory. As there was no fluid in the drain overnight, the same was removed. Since in the evening the patient had discomfort in the abdomen and passed stools 2-3 times and was a little feverish (fever 99.2 degree F), he was again ordered to be Nil orally and treatment modified accordingly, with blood investigations repeated. TLC, DLC ESR, HS, Na+, K+, B Urea and S. Creatinine were got done. On 14.5.2018, the patient though had vitals normal and passing urine, but passed stool twice last night with abdominal discomfort still prescribed, was ordered for ultrasound examination, report of which was “Small Right Renal Calculus with Acute Intestinal Obstruction/…. ? Paralytic ileus with ……….? Perforation Peritonitis. “ In the evening, after receipt of the report of Ultrasound examination, Ryle’s tube was put in for suction of gut contents. The patient was orally nil. Since the patient as well as attendants of the patient wanted the Ryle’s tube to be out, which could not be done being a standard line of treatment as per condition of the patient at that time for the reason to have the gut dry by draining fluid at regular intervals for better results, the attendants then insisted to shift the patient to some other hospital at Amritsar for further management. Thus at 9.00 PM, they took the patient after getting referral slip of their own. At the time of referral, the patient was in stable condition with vitals normal. All investigation reports in original with referral slip were given to the attendants at the time of shifting after retaining photocopies of on the record. Ambulance was offered by the hospital which was refused by the attendants as they themselves arranged conveyance for the purpose of shifting the patient from O.P.1 Hospital. For the whole hospitlaisation, Rs. 12,000/- were charged by OP 1 hospital which included surgeon as well as Anesthetist fee against proper bill. For the chemist shop as well as for Laboratory charges, those were directly paid by the patient/ attendants. There is no evidence worth its name to show that there was any negligence or deficiency or delay in service in opposite party No. 1 hospital during the course of treatment of the patient in question during relevant times, nor any act of deficiency or negligence or delay or omission or commission was committed as per treatment record of the said patient produced with the complaint, though incomplete and selective and treatment in question was given in O.P. no. 1 hospital on standard scientific lines as per condition of the patient by fully competent, qualified and well trained/ experienced doctors. However, the patient had post operative complication of ? Intestinal obstruction? Perforative peritonitis with free fluid in pelvic cavity ( as per ultrasonography report dated 14.5.2018) which is not due to the treatment including surgery conducted in O.P. 1 hospital but is known complication in the patients which are having necrosed base of appendix (i.e. due to leakage? From necrosed stump of appendix). This stand proved from the report of OP No. 2 hospital wherein no evidence of any injury to the viscera due to surgical cause was found during subsequent surgeries in O.P. No. 2 hospital, but there was leakage from appenedicular stump as is mentioned in the operation notes dated 15.5.2018 in the record of OP No. 2 hospital. During the said surgery, the leakage was treated/ stopped by applying stitches over the leakage site. Alongwith that Ileostomy too was done so as to give rest for proper healing of the repaired appendicular stump. Otherwise as per record of O.P 2 hospital, the patient was having his vitals normal at the time of admission in O.P. 2 hospital. The complainant is barred from filing present complaint which is liable to be dismissed. The complaint is not maintainable either on facts or under the law against O.P. 1. Since no evidence based allegation has been leveled in the complaint against opposite party No. 1, the complainant is not entitled for any relief against O.P. No. 1. The present complaint is a gross abuse of the process of this commission as purported complainant has not approached this commission with clean hands. Various material facts have been concealed and distorted version of the facts have been deliberately presented to, to pressurize and harass opposite party No. 1. There is no evidence worth its name to show that there was any negligence or deficiency or delay in service in O.P. No. 1 hospital during the course of treatment of patient in question during relevant times, nor any act of deficiency or negligence or delay or omission or commission as committed as per treatment record of the said patient produced with the complaint, though incomplete and selective and treatment in question as given in O.P. 1 hospital on standard scientific lines as per condition of the patient by fully competent, qualified and well trained/ experienced doctors in O.P. 1 Hospital. The process of Consumer Commission cannot become a tool at the hands of unscrupulous persons who file complaint merely with a view to extract money from O.Ps. in the grab of compensation. Mere oral and bald statement of purported complainant that the was negligence or deficiency in OP 1 hospital during the course of treatment of the patient in question will not make O.P 1 hospital negligent in this regard. It is a well settled as well as requirement of the equity that one who alleges must prove. The purported complainant cannot make this commission to reach conclusion her way on the basis of distorted facts. Since the complainant does not have any proof regarding the negligence of O.P 1, nor any specific allegation have been leveled against O.P. 1 nor any wrong or negligence or deficiency in service had been committed towards the patient in question during relevant times in O.P. 1 hospital, the complainant has no locus standi to file the present complaint under provisions of Act. The present complaint is a fit case where this commission shall take stringent action against complainant as envisaged under Section 26 of the Consumer Protection Act 1986. The present complaint is in fact filed after an unexplained delay of number of months, at the behest of certain vested interest/ ulterior motive, out of the greed and lust for money and on account of the fact that certain cases have gone adverse to the medical professionals and this complaint is alleged to be likely to meet the same fate. No cause of action accrued to the complainant against O.P No.1. The complainant has not mentioned in the complaint in what way O.P No. 1 was negligent during the course of treatment of the purported complainant/ patient in question during relevant times and how and what doctors in O.P.1 hospital was supposed to do in that regard. The complaint on vague allegations deserves to be dismissed. The complaint is bad for misjoinder / non joinder of parties. The doctors/ hospitals where the patient alleged to have taken treatment before coming to O.P.1 hospital, and after taking treatment from OP 1 are necessary parties in the present matter. Even otherwise, no complaint is maintainable against OP No. 1 Hospital. Since as per the allegations of the complainant in the complaint, the matter in dispute require lengthy and detailed evidence/ detailed trial to prove either way, the present matter cannot be disposed off in summary trial under the act as the allegations are of complex and complicated nature, and it is the civil court which is competent to settle the allegations in the complaint after detailed trial by way of evidence, though false and frivolous qua OP No. 1. The compensation claimed in the complaint as per allegations, though false and frivolous is too exaggerated. The complainant has not come to this commission with clean hands, concealing many documents with regard to treatment of the patient in question prior to, during the course of treatment from in OP 1 hospital and subsequent to coming to OP 1 hospital, and further filed present complaint with distorted facts, he is not entitled for any relief. In the absence of any expert opinion that the treatment was not proper, or that treating doctor was negligent while treating the patient, the allegation of negligence qua one of the treating doctor/ hospital while treating the patient is not tenable. The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party No. 1 has placed on record affidavit of Dr. Joginder Singh Sandhu M.B.B.S. M.S. (Surgeon) Ex. OP1/1 alongwith documents i.e. Photostat copy patient record Ex. OP1/2, Photostat copy of bill NO. 136 dated 8.5.2018 Ex. OP1/3, Photostat copy of certificate of Joginder Singh Ex. OP1/4.
3 The opposite party No. 3 appeared through counsel but has not filed written version.
4 The complainant has filed rejoinder to the written version filed by the opposite party No. 1 and reiterated the stand as taken in the complaint and prayed that the present complaint may be allowed.
5 Ld. counsel for the complainant has tendered in additional evidence Photostat copy of the patient record pertaining to period from 15.5.2018 to 22.5.2018 Ex. C-11, Photostat copy of treatment record as Ex. C-12, Photostat copy of treatment record Ex. C-13, Photostat copy of treatment record Ex. C-14, Photostat copy of operation note dated 15.5.2018 Ex. C-15, Photostat copy of treatment record for the period from 7.6.2018 to 16.6.2018 Ex. C-16, Photostat copy of treatment record pertaining to period 11.7.2018 to 17.7.2018 Ex. C-17, Photostat copy of scan report dated 10.7.2018 Ex. C-18.
6 We have heard the Ld. counsel for the parties and have carefully gone through the record.
7 From the combined and harmonious reading of pleadings as well as documents placed on record is going to prove that the complainant is student and on dated 8.5.2018 he suddenly felt severe pain in abdomen, as such he approached the opposite party No. 1 for treatment and diagnosis and the opposite party No. 1 admitted the complainant and on 9.5.2018 the complainant was referred for Ultrasonography report to Sigma Scan Centre Tarn Taran and as per report the complainant was suffering from acute appendicitis. Thereafter, the surgery was conducted by opposite party no. 1 for the problem of acute appendicitis. After the surgery the health of complainant continued to deteriorate and new complicacies arose in the health of complainant which were duly informed to opposite party No. 1 who continued provided the treatment to the complainant but all in vain. The condition of the complainant became serious and the opposite party No. 1 continued his treatment for 3/4 days and again referred the complainant for same ultrasonography report of his whole abdomen and the complainant was astonished to see the report of Sonography whereby it was found that the multiple distended gut loops were seen all over the abdomen of the complainant along with free fluid in the right side of pelvic cavity and on going through the report the opposite party No. 1 told the complainant that disposal pipe/ latrine pipe of the complainant was actually go cut during the surgery done by him on 9.5.2018. The complainant further contended that he as well as his parents told the opposite party No. 1 that the complicacies and deterioration of the health of the complainant is due to the negligence of the opposite party No. 1. Thereafter the opposite party No.1 discharged the complainant on 14.5.2018 by saying that he can do nothing to rectify his negligent act and could not pay anything as compensation. The opposite party No 1 forcibly received Rs. 20,000/- for expenses of treatment and medicine. Thereafter, the complainant and his parents decided to obtain the treatment from some other hospital and as such the complainant was admitted with opposite party No. 2 on the same day i.e. 14.5.2018, where the treatment of the complainant was got conducted although the condition of the complainant was very serious. The opposite party No. 2 conducted three surgeries upon the complainant so to provide him treatment due to complicacies caused in his health due to negligent treatment and surgery by the opposite party No. 1. The complainant remained in the hospital of opposite party No. 2 for 4-5 days for getting these surgeries as such resulted in cutting almost whole of the body of the complainant. Moreover, the complainant has to spend Rs. 4,15,663/- on his treatment by the opposite party No. 2. Due to negligence of opposite party No. 1, the complainant lost their chances for his bright future. Thereafter, the complainant approached the opposite party No. 1 and demanded the compensation to the tune of Rs. 15,30,000/- for permanent lost of health, future and physical pain as well as mental harassment.
8 Ld. counsel for the opposite party contended that as per record of O.P.1 (Ex. OP1/2), the patient Gurkirat Singh son of Hardeep Singh, aged 18 years male, complainant came to O.P.1 hospital on 8.05.2018 in the afternoon with complaint of pain abdomen (around Umbilicus & right iliac region) for the last 24 hrs. There was no history of diabetes mellitus, there was history of fever with vomiting 1-2 days (patient was still febrile at the time of being brought to the hospital), distension in abdomen positive. On examination, there was no cyanosis, no jaundice, Cardio Vascular system, Central Nervous System, Chest all NAD; on local examination, it was found that there was abdominal tenderness all over abdomen especially right side, history of the same for the last 24 hours given. Since there was suspension of acute attack of acute appendicitis, the patient was immediately admitted by Dr. Joginder Singh Sandhu, M.B.B.S., M.S. (General Surgery) who after stabilizing the patient overnight with proper medication including prophylactic antibiotic cover, advised ultrasound examination the next morning. After report of ultrasound examination, report of which gave finding of "Small Right Renal Calculus with ..... ? ACUTE APPENDICITIS". Since for this condition of the patient, surgery was the standard line of treatment and surgical consent, the patient was further evaluated & investigated for the purpose of surgery. Thus investigations Hb, TLC, DLC, BT, CT, B.Sugar and B.Urea, along with HIV, HCV, A Ag as well as ECG were got done. As per blood investigation reports, the patient was having infective pathology as well because the TLC & DLC had raised parameters (TLC 13,600/cumm with Polymorphs 73%). After getting the Pre-anesthesia check-up done, the patient was taken for the surgery on 9.5.2018 itself under all aseptic conditions in the fully equipped operation theatre of Harsukhman Hospital with Dr.Joginder Singh Sandhu as surgeon, with spinal anaesthesia given by Dr.Balram (M.D. (Anaesthesia). During the course of surgery, pus and fluid were found in the right iliac fossa and pelvis which were washed. Appendix was identified which was found to be badly necrosed at its base. The appendix was separated and ligated. Necrosed tissue removed, stump ligated and then covered with omentum. Abdomen was washed thoroughly, drain put in the iliac fossa, hemostasis achieved. Abdomen closed in layers and patient was shifted to the post-operative recovery from the operation theatre in good condition. The post-operative diagnosis was "ACUTE APPENDICITIS WITH NECROSED PERFORATED BASE WITH PUS COLLECTION". On 9.05.2018 in the post-operative period, the patient was still febrile but stable. The operative specimen (pus removed during surgery and the removed appendix with necrosed tissue) was handed over to the relatives for pus culture of the puss as well as histopathology examination of appendix & necrosed tissue from any clinical lab of their choice. The patient was given required post operative treatment on standard lines with proper antibiotic cover. On the post-operative period, till 14.05.2010, the patient was having good recovery but on that day he passed stools twice since last night with discomfort. Fresh ultrasound examination depicted "SMALL RIGHT RENAL CALCULUS WITH ACUTE INTESTINAL OBSTRUCTION/... PARALYTIC ILEUS WITH PERFORATION PERITONITIS". In the evening. after receipt of report of ultrasound examination, Royal's tube was put in for suction of gut contents. The patient was orally nil. Since the patient well as attendants wanted Royal's tube to be out, which could not be done being standard line of treatment as per condition of the patient at that time for the reason to have the gut dry by draining fluid at regular intervals for better results, the attendants then insisted the patient to be shifted to some other hospital for further management. Thus at 9.00 PM, they took the patient after getting referral slip of their own. At that time the patient was in stable condition with vitals normal. Rs 12,000/- were for this total hospitalization. There is no evidence worth its name to show that there was any negligence or deficiency or delay in service on the part of O.P.1 hospital during the course of treatment of the patient during relevant period, nor any act of deficiency or negligence or delay or omission or commission was committed as per treatment record of the said patient produced with the complaint, though Incomplete and selective, and treatment in question was given in O.P.1 hospital on standard scientific lines a per condition of the patient by fully competent, qualified and well trained experienced doctors. However, the patient had post-operative complication of ? Intestinal obstruction? Perforative peritonitis with free fluid in pelvic cavity (as per Ultrasonography report dated 14.05.2018) which is not due to the treatment including surgery conducted in OP No.1 hospital but is known complication in the patients which are having necrosed base of appendix (i.e. due to leakage? from necrosed stump of appendix). This stand proved from the record of O.P. No. 2 hospital wherein no evidence of any injury to the viscera due to surgical cause was found during subsequent surgeries in Preet Hospital, but there was "LEAKAGE FROM APPENDICULAR STUMP" as is mentioned in operation notes dated 15.05.2018 as per record (Ex.C-15). During the said surgery, the leakage was treated/ stopped by applying stitches over the leakage site. Otherwise as per record of Preet Hospital, the patient was having his vitals normal at the time of admission in Preet Hospital. Operation Notes dated 15.05.2018 are as:
!G/A, ABDOMEN OPENED IN PARAMEDIAN
INCISION, THERE WAS PERETONEAL COLLECTION, ABDOMINAL
CAVITY LEVAGED WITH NORMAL SALINE, SMALL GUT
EXAMINED, AND WAS NORMAL. THERE WAS LEAKAGE
FROM THE APPENDICULAR STUMP C LECERATIONS.
THE RENT WAS STICHED, SECURED
AND COVERING ILEOSTOMY DONE. DRAIN PUT IN
ABDOMEN CLOSED IN LAYERS.
Second hospitalization was done in Preet Hospital for repair of iIliostomy which was done on 15.05.2018. Operation notes dated 8.06.2022 which are part of Ex.C-16 are as:
"I S/A, ILLIOSTOMY CLOSURE DONE
ELEO-CECAL ANAESTMOSIS WAS DONE,
DRAIN PUT IN
WOUND CLOSED IN LAYERS.
The 3rd surgery in Preet Hospital on 11.07.2018 was as per Ex..C-17 findings of which are:
G/A, ABDOMEN OPENED, GUT EXAMINED
THERE WERE MULTIPLE ADHESIONS, WHICH WERE
BROKEN, ADHENALYSIS DONE.
DRAIN PUT IN
WOUND CLOSED IN LAYERS.
It is pertinent to mention here that after the surgery second sonography was done and it was mentioned that the patient had post operative complication of intestinal obstruction ? perforative peritonitis with free fluid in pelvic cavity which was not due to the treatment including surgery conducted in opposite party No. 1 hospital. But it was known complication in the patient which are having necrosed base of appendix i.e. (due to leakage from necrosed stump of appendix). This fact was proved from the record of opposite party No. 2 hospital wherein no evidence of any injury to the viscera due to surgical cause was found during the surgery in Preet Hospital. The ultrasound which was done on 14.5.2018, it is not mentioned anywhere that there is a surgical cut in the stomach/abdomen during the surgery conducted by OP No. 1
Moreover, there were three surgeries conducted by the opposite party No. 2 i.e. Preet Hospital and it is nowhere mentioned that there is any injury caused by opposite party No. 1 during the surgery. This fact is very much clear from the operation notes of the opposite party No 2 hospital dated 15.5.2018.
!G/A, ABDOMEN OPENED IN PARAMEDIAN
INCISION, THERE WAS PERETONEAL COLLECTION, ABDOMINAL
CAVITY LEVAGED WITH NORMAL SALINE, SMALL GUT
EXAMINED, AND WAS NORMAL. THERE WAS LEAKAGE
FROM THE APPENDICULAR STUMP C LECERATIONS.
THE RENT WAS STICHED, SECURED
AND COVERING ILEOSTOMY DONE. DRAIN PUT IN
ABDOMEN CLOSED IN LAYERS.
Thereafter, the second surgery was performed in which illiostomy done and finally wound closed in layers. In the third surgery as per Ex. C-17 which was done for G/A, ABDOMEN OPENED, GUT EXAMINED THERE WERE MULTIPLE ADHESIONS, WHICH WERE BROKEN, ADHENALYSIS DONE. DRAIN PUT IN WOUND CLOSED IN LAYERS.
The complainant has specifically raised the plea that after going through the report of ultrasound dated 14.5.2018, the opposite party No. 1 told the complainant that the disposal/ latrine pipe of the compliant was actually got cut during the surgery done by him on 9.5.2018. But we are not agreed with the complainant. As the subsequent ultrasonography report dated 14.5.2018 mentions multiple distended gut loops all over the abdomen, with free fluid seen in the right side of pelvic cavity and it is clear that this was not due to any injury to the Viscera during the surgery and these are the non complications in the patient which are having necrosed based of appendix due to leakage from necrosed stump of appendix. Meaning thereby there was no negligence upon the part of the opposite party No. 1 as the sonography conducted on dated 14.5.2018 shows no injury / cut in any part of the complainant.
The first surgery in Preet Hospital was done to tackle known complication of leakage of pus from necrosed & infected appendicular lecrated appendicular stump, stump by way of repairing illiostomy was done to tackle inflamation of the intestine which was not the result of surgery but due to multiple complications of infected pathology which was already there on 9.05.2018 when the patient was operated upon in O.P.1 hospital.
The second surgery in Preet hospital was done on 8.06.2018 to close illiostomy which was done on 15.05.2018 which was for treatment of distension of intestine and not for treatment of necrosed appendix
The third 11.07.2018 to surgery in Preet Hospital was done on dislodge multiple adhesions in abdomen which had nothing to do with the surgery done in O.P. No. 1 hospital
In this complaint, the opposite party No. 2 did not file the written version and he can produce the best evidence that as to why they have performed the subsequent surgeries and in their operation notes nowhere mentions that there was any injury to the vital part of the complainant. As such, the record placed on record by the complainant as well as opposite parties are going to prove that the patient was benefited due to surgical treatment of necrosed infected appendix and post operatively, the patient suffered not due to the surgery but due to the known complication of leakage from already infected and necrosed appendicular stump at the time of surgery on 9.5.2018. Moreover onus was upon the complainant to prove the negligence beyond reasonable doubt which has not been done in the instant case. In C.P.Sreekumar (Dr) MS Ortho Vs. Ramanujan, 2009 (7) SC 130, it has been held that bald statement of the complainant cannot be accepted to reach conclusion that the doctor lacked expertise. It is observed that too much suspicion about the negligence of the attending doctors and frequent interference by courts could be a dangerous proposition as it would present doctors from taking decision which could result in complications and in such a situation the patient will be the ultimate sufferer. It is well settled law that in the case of medical negligence, initial burden to prove medical negligence lies on the complainant. Mere averments in the complaint are no evidence. Just a bald statement cannot be accepted as held by Hon‟ble Supreme Court in Jacob Mathew Vs. State of Punjab &Anr (2005) (3) CLT 358 (SC). On this point we are supported from the judgment 2015(2) CLT 310 (NS) Ram Gopal Yadav Cs Pushkar Anand (Dr) and others. In this case it was held that initial burden to prove medical negligence lies on the complainant. Further a reference has been taken from 2009(4) CLT (SC) C P Sreekumar (DR) MS (Ortho) Vs Ramunjam 2009(3) CLT 430 (SC)“ Nizam Institute of Medical Sciences Vs Prasanth S Dhanaka & Ors and (2005) (3) CLT 358 (SC) Jacob Mathew Vs State of Punjab and others .
9 Moreover the scope of negligence has discussed in various judicial decision extract of which are detailed hereunder:
In the book titling "Medical Negligence" written by Shri S.P. Tyagi (Edition 2004) Reprint 2008, he has mentioned at Page No.64, 65, 66, 67 and 68 regarding Medical Negligence, Classification of medical negligence or mistakes. It runs thus :-
"What is Medical negligence
The term medical negligence is nowhere defined in any Code or Act. No legislature, has so far, made any attempt to define it. Even the medico-legal jurists have not come forward to provide a specific meaning to this express. 'Medical negligence' is always an outcome of doctor patient inter se conduct and relationship, which lacks uniformity. The issue of medical negligence is a complicated one as medical professionals deal with human body. They do not deal with the machine. Human body is not a mere composition of bones and flesh. It is susceptible to emotions also. Response of medicinal treatment varies from patient to patient. This phenomenon is also applicable to recovery aspect. Further recovery aspect is not solely dependent upon the appropriateness of treatment provided by the doctor. Response or recovery of a patient also depends on his individual anatomy and physiology. Possibility cannot be ruled out that a drug may be effective in case of one patient, it may not be effective in second and may cause reaction in third. Medico Legal experience also establishes that there exists inherent risk in every treatment, medicinal or surgical. Further possibility of unforeseen mishap may not be ruled out. Even the medicinal literature provides for failure rates particularly in surgery. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be more than one course of treatment which may be advisable for treating a patient. Medical opinion may differ with regard to the course of action adopted by a doctor treating a patient.
Further the concept of medical negligence may be studied with reference to the extent of approach of a medical professional towards three under mentioned concepts, which generally work as guidelines to determine the factum of medical negligence or other-wise in a particular case.
-Duty of care in accepting the patient for treatment.
-Duty of care in providing appropriate treatment.
-Breach of duty or commission of negligence in any of them and damage cause by such breach.
In other words, medical negligence is result of some irregular conduct on the part of any member of the profession or related services in discharge of professional duties. Broadly speaking medical negligence means negligence resulting from the failure on the part of the doctor to act in accordance with medical standards in vogue, which are being practiced by an ordinary and reasonably competent man, practicing on the same branch of medicine or surgery. Classification of medical negligence or mistakes. Negligence in medical care may broadly be classified into four categories Medical negligence at the level of doctors / paramedical staff / hospital authorities. Liability for negligence may be fixed at individual level and / or jointly or vicariously where hospitals nursing homes are involved. Negligence at the level of patient himself or his attendants also known as contributory negligence. Negligence at the level of manufacturers of drugs, equipment etc. and dispensers. Composite negligence i.e. at more than one of the above 3 levels. Negligence of first category may further be sub-classified into two categories viz. (a.) Individual liability of a medical professional. (b) Vicarious liability of an individual doctor or hospital for the Medical negligence may also be classified as under :Medical mistakes. ,Clinical negligence. Surgical mistakes Misplaced injection.
In Vimla RanaVs Mahesh Hospital and Ors. 2018 (1) CPR 353(NC), Hon'ble National Commission has observed thus :- "Consumer Protection Act, 1986 – Medical Negligence – Complainant's daughter was critical and hospitalized at Mahesh Hospital due to pain in abdomen for several days – Blood Pressure could not be recorded and she shivered - Following ultrasound adnexal mass found in right portion of adnexa – Tuberculosis in intestine along with severe perforations detected, and patient was shifted to LNJP hospital where she died after sixteen days – Complainant alleges Mahesh Hospital was negligent, and had operated on stomach of deceased without consent of her relatives – Seeks compensation to the tune of one crore – Defense point out that deceased had been unwell for past few months – Complainant has been unable to prove his allegations - No evidence to show that hospital did not have an ICU - No case of negligence made out against the hospital – Complaint dismissed without costs."
In Dr. M. KocharVs. Ispita Seal and Anr. 2018 (1) CPR 507 (NC),Hon'ble National Commission has observed thus :- "Consumer Protection Act, 1986 – Medical Negligence – Patients right fallopian tube had to be removed in 1990 owing to an ectopic pregnancy, but she was told that she could still conceive – Second pregnancy was also ectopic, and for the remaining few years she kept taking infertility treatment - OP then recommended IVF as the only alternative - On the day of tests she was handled only by staff members and even the documents did not bear OP's sign – Husband's semen test report was fine – Procedure was to be performed by the OP, who on the date of IVF told her that she had developed an infection - Complainant alleges extreme stress caused by the whole experience, and further alleged that OP had insisted on performing ET despite the certainty of failure - Complainant thus seeks compensation for negligence of OP and a refund – IVF in itself has a low rate of success which only gets lower as a woman gets older – OP had used the right procedure for IVF – No case of negligence made out."
In Dr. Laxman Balkrishna Joshi v. Dr Trimbak Bapu Godbole and another, AIR 1969 Supreme Court 128, Hon'ble Supreme Court has observed thus :-
The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives Page a right of action for negligence to the patient. The practitioner must bring to his task 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 : (cf. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency..........
In this context it is relevant to cite case of Kusum Sharma & ORS.Vs. Batra Hospital & Research Centre & ORS., I (2010) CPJ 29 (SC) in which the conclusions under different case laws on the subject of medical negligence have been summarized as under :-
‘Para” 90” In Jacob Mathew’s case (supra), conclusions summed up by the Court were very apt and some portions of which are reproduced hereunder:
a. Negligence is the breach of a duty caused by omission to do something which is 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh) referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’, ‘breach’ and ‘resulting damage’.
b. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.
c. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:
d. 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.
e. 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.
f. The medical professional 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 circumstances of each case is what the law requires.
g. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
h. 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. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which is 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. 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.
It would not be conducive to the efficiency of the medical profession if no Doctor could administer medicine without a halter round his neck.
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. 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 or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
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.”
In Jacob Mathew (Dr.) Vs. State of Punjab &Anr. III (2005) CPJ 9(SC), Hon'ble Supreme Court has observed thus :-
"26. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgment on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. 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. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent now-a days is to obtain the consent of the patient or of the person in-charge of the patient if the patient is not in a position to give consent before adopting a given procedure. So long as it can be found that the procedure which was in fact adopted was one which was acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure. We sum up our conclusions as under: -
Negligence is the breach of a duty caused 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. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are there: 'duty', 'breach'' and 'resulting damage''. Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
In Prayag Hospital & Research Center Pvt. Ltd. & Anr. Vs. Vijay Pal2016 (2) CPR 2 (NC);
Hon'ble National Commission has observed that "Complainants must provide materials to prove allegation of medical negligence."
In Ashok Kumar Pathak Vs. Dr. Swarnava Roy and Anr.2017 (1)CPR 251 (NC); Hon'ble National Commission has observed that "Medical Negligence must be proved by expert opinion."
10 In the above case the complainant has not been able to prove that the opposite party No. 1 has given any wrong treatment to the complainant. The complainant has neither brought in any expert to prove his case. Therefore, we are of the opinion that the complainant has not been able to establish any medical negligence or deficiency in service on the part of the opposite party No. 1.
11 In view of the above discussion, we do not find any merit in the complaint and the same is hereby dismissed. The parties are left to bear their own costs. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission.
03.11.2022
