Haryana

Ambala

CC/119/2015

Sunita - Complainant(s)

Versus

Healing Touch Hospital - Opp.Party(s)

Seo Ram

28 Dec 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

            Complaint Case No.      : 119 of 2015.

Date of Institution         : 30.04.2015.

                    Date of Decision            : 28.12.2017.

 

Sunita wife of Sh.Ashok Kumar, resident of H.No.217, New Rattangarh Colony, Ambala City.

……Complainant.

Versus

1. Healing Touch Hospital, Super Specialty Corporate Hospital, Sultanpur Chowk, Ambala Chandigarh Road through its Director.
2. Dr.Kuldeep Kumar c/o Healing Touch Hospital, Super Specialty Corporate Hospital, Sultanpur Chowk, Ambala-Chandigarh Road.
3. Dr.Alok Ahuja c/o Healing Touch Hospital, Super Specialty Corporate Hospital, Sultanpur Chowk, Ambala-Chandigarh Road.
4. United India Insurance Co.Ltd. through its Branch Manager/ Authorized signatory O/O IInd, SCO 177, 178, Sec. 8-C, Chandigarh-160008.

                                                                   ……Opposite Parties.

Complaint Under Section 12 of the Consumer Protection Act

 

BEFORE:   SH. D.N. ARORA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

                  

Present:       Sh. Vipul Singh, counsel for complainant.

                   Sh. Anuragh Sharma, counsel for OP Nos.1 to 3.

                   Sh. R.K.Vig, counsel for OP No.4.  

 

ORDER

 

                   Brief facts of the present complaint are that the complainant was diagnosed with stones in gall bladder and she got herself examined from OP No.2 in hospital/OP No.1 where Op Nos. 2 & 3 suggested Cholecystecomy through laser laparoscopic treatment known as laparoscopic cholecystectomy.  It was assured to the complainant and her husband that general anesthesia would be done before taking out gall bladder with stones inside it and the surgery would take 20 to 40 minutes which causes less pain. It was further assured that the patient would be discharged after the day of surgery which is required within a day or two otherwise same can create complications. The Op Nos. 2 & 3 while operating directed the husband of the complainant asked to arrange 2 units/bottles of blood which was arranged but suddenly 2 more units/bottles were further asked. The Ops while conducting the operation on 04.11.2014 adopted old technique for removal of gall bladder stones and conducted open surgery and kept the complainant and her husband in dark with malafide intention and performed a major surgery with uncontrolled bleeding.  The above said method adopted by the OPs could not succeed as the complainant remained under pain and sufferings for so many days and by adopting the self created medial methods all the Ops created infections inside the body of the complainant.  The open cholecystectomy was not informed to the complainant and even no consent was also taken. The OPs have also given enemas to the complainant causing her mental and physical pains and sufferings. It was required for the OPs to keep her under post operating care treatment but they failed. There was a non stoppage of waste water from the drain pipe as there was regular discharge of bleeding which remained throughout uncontrollable and complainant also started vomiting and the entire system of the body of complainant became unfit but the Ops have not suggested any positive approach to complainant and when after 7 days of failed attempts treating doctors referred the complainant on 10.11.2014 without disclosing the actual position. The complainant was got admitted in Fortis Hospital at Mohali on 10.11.2014 at 7.15 p.m. The doctors at Fortis hospital diagnose a Biliary Peritonitis and then she came to know that pain and irritation subsisting in the body due to incision made by Ops while negligently performing the operation. The complainant has spent more than Rs.8 lac on bills and medicines due to the negligence of the Ops as they had used foul techniques for removing the stones and gall bladder. Due to medical negligence of treating doctors the complainant remained bed ridden for two months and is taking medicines from 04.11.2014 till today.  She has never been attended after the surgery on 04.11.2014. The complainant had visited the OPs in good faith and for a faithful operation but the due to profiteering motive have committed breach of trust as their act was below the standard of care expected from which is clear cut deficiency in service on their part.  The complainant got served legal notice upon the Ops but to no avail and they failed to pay any heed to the genuine request of the complainant. In evidence, the complainant has tendered her affidavit Annexure CX and documents Annexure C1 to Annexure C81.

2.                          On notice Ops appeared and filed their separate replies. OP Nos. 1 to 3 in their joint reply have submitted that she had visited OP no.1 for removal of gall bladder as she was diagnosed with stone in gall bladder on clinical and ultrasound evaluation by Dr.Subhash Goel of Shivi Ultrasound, Ambala. No laser was used for laparoscopic treatment. It was told to them by the complainant that she is entitled for 100 % reimbursement and requested for operation by way of laparoscopic treatment. Initially for removal of gall bladder the laparoscopic treatment was undertaken but during the course of treatment it was established that the gall bladder could not be removed unless open cholecystectomy is undertaken so cholecystectomy (open gall bladder surgery) was undertaken since it was indispensable and required consultants and paramedical staff was the part of operating team. The Ops have acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that particular act. If a doctor has taken do care which is expected from a reasonable doctor and ultimately, if some complications to be developed, it cannot be said that it were due to negligence of doctor. The medical negligence is to be proved with expert evidence. During the course of operation Laparoscopic Cholecystectomy was converted into  open cholecystectomy in operating theater in view of sudden and unexpected mesenteric vasculature injury and bleed. After the surgery she was shifted from operation theater to intensive care unit of the hospital which is fully equipped with service of 24 hours intensive nursing care under the super vision and vigil of a Head nurse round the clock with services of Resident Medical Officer. The physiotherapist alongwith intensivist and consultant surgeon provided the requisite post operative would care and physiotherapy on regular basis. The complainant and her husband were duly informed about the open gall bladder surgery. It was duly informed to the husband of the complainant about the persistent bile discharge in the drain, so she was accordingly advised that abdomen needs to be explored to identify and repair the etiology of biliary leakage but she opted to seek a referral from the hospital and she was handed-over  a valid discharge summary of the treatment. Enema is the standard protocol therapy to help patient restore normal bowel activity. There was no bleeding since after the operation and it was biliary leakage which was also taken care of. Trocar insertion is a standard step in performance of the laparoscopic cholecystecomy. On through visualization and detailed exploration dense adhesions of the intestine with omentum, gall bladder, peritoneum and bleeding mesenteric vessel identified. The Ops have only charged Rs.20,000/- including the cost of medicines and all other expenses. The open gall bladder surgery/technique is being used to manage gall bladder stone disease in cardiac and cases of chronic lung disease patients. The OPs have acted with great reasonable degree of care & skill and testimonials. There is no medical negligence, professional misconduct and deficiency in service on the part of OP Nos.1 to 3. Other allegations levelled in the complaint have been controverted and prayer for dismissal of the complaint has been made.  

                             Op No.4 filed its separate reply wherein it has been submitted that there is no deficiency in service on the part of OP Nos.1 to 3 are no doctor can be held responsible for treatment when no relief is available after treatment. No record/independent evidence has been produced by the complainant to show that Dr.Alok Ahuja was negligent while operating laser laparstopic treatment. The complainant is estopped to file the present complaint wherein in-action on the part of treating doctors has been alleged because she herself consented for treatment from them. The insurance company has been unnecessarily made party after 2-1/2 years of filing complaint which is time barred.  The complainant has not made Fortis hospital as party to the present complaint. Other contentions made in the complaint have been controverted and prayer for dismissal of the complaint has been made. In evidence, the Ops have tendered affidavits Annexure RA, Annexure RB and documents Annexure R1 to Annexure R10.

                             On 19.12.2017 when the case was fixed for final arguments counsels for the Ops Nos. 1 to 3 duly signed by counsel for Op No.4 have moved an application for recalling CW2 Dr.Atul S.Joshi examined on 10.04.2017 for cross-examinations. Reply filed and the contents of the application were opposed by mentioning that the OP Nos. 1 to 3 had already availed opportunity for cross-examination but they have not preferred to cross-examine the witness at that time, therefore, witness cannot be allowed to be cross-examined because OP Nos.1 to 3 have closed evidence on 25.09.2017 vide their separate statement. The OP No.4 has also closed its evidence on 08.12.2017 without any prayer to cross-examine the witness examined on 10.04.2017.                 

                             Hence, in view of the above circumstances the application is without any merits and is hereby dismissed.

3.                          We have heard learned counsel for the parties besides going through the material available on the case file very carefully.

4.                          Counsel for the OP Nos. 1 to 3 alongwith the treating doctor have placed on record Photostat copy of treatment record and literature and argued that the  “Risks of the operation: The chief danger lies in the possibility of injury to one of the man bile ducts or to the right hepatic artery. Unless the junction between the cystic and common ducts is clearly  demonstrated, a segment of the common duct may be inadvertently clamped or included in a ligature, so that biliary obstruction may result. Undetected section of a duct- possibility an abnormally placed or accessory one- may lead to biliary peritonitis or to an external fistula.  Complications of laparoscopic cholecystectomy: all biliary injuries are considered, the injury rate in these reports ranges from 0.6 % to 1.5 % which is three to four times the injury rate at open surgery. Laparoscopy biliary injuries are somewhat different from those of the open era and for this reason a new classification has been introduced. Major vascular injuries to hepatic arteries, especially the right hepatic artery, may occur in association with biliary injuries, leading to intraoperative blood loss. Hepatic infarction has not been a problem presumably because of the dual blood supply to the liver. Isolated vascular injuries to hepatic vessels are rare. Avoidance of injury using the techniques previously described is of paramount importance”.   In support of his arguments he placed case law titled as  Kusum Sharma & ors. Vs. Batra Hospital & Medical Research Centre & others reported in 2010(2)RCR (Civil) 161, Martin F. D.Souza Vs. Mohd.Ishfaq AIR 2009 page 2049 (SC), Sukhraj Kaur Vs. Dr. Balkar Singh IV (2015) CPJ 460 (NC) and Vinayak Vs. Dr. Vijay Kumar Hariram Nainderkar Mrutunjaya Hospital & Ors.  III (2015) CPJ 661 (NC).   It has been further argued that the complications as alleged by the complainant are normal in nature and appears after the surgery, therefore, as per literature mentioned above the doctors cannot be held responsible for any post operative complications.

                   It is admitted fact that complainant the complainant had visited Op No.1/hospital for surgical operation of her disease (gall bladder stone) for Laproscopic Cholecystectomy and patient consulted for the same and the surgery was conducted by the treating doctor on 04.11.2014. During conducting the procedure while creating Pneumo- Peritoneum suffered injury to some intra abdominal vessel and patient bleeded in  peritoneal cavity and surgical procedure was converted to open Cholecystomy and patient was transfused with blood and open Cholecystomy was done. They had tried to manage the patient but condition of the patient has become deteriorated during the stay in the hospital per operative and post operative by the time the patient was referred on 10.11.2014 for further management to higher institute. Condition of the patient was too serious when she was referred or admitted in Fortis Hospital. The treating doctor of the Fortis hospital has also issued the detail past history as well as the course of treatment Annexure C5. The relevant portion as under:

                   Past History:

                   Diagnosed case of gall stones since April, 2014 was on medications for 3-4 months, operated on 04.11.2014 at hospital at Ambala, lap converted to open cholcystectomy-Explorator5y laparotomy through midline incision. Operative diagnosis was peritonitis pyocele (as mentioned in referral slip).

                   Present illness:

                   Patient diagnosed case of gall stones since April, 2014 was on medications for 3-4 months, operated on 04.11.2014 at private hospital, Ambala, lap converted to open cholecystectomy- Exploratory laparotomy through midline incision. Operative diagnosis was peritonitis pyocele (as mentioned in referral slip. Post patient was managed in ICU at the same hospital till 10.11.2014. Patient deteriorated, she had persistent bilious drain from abdominal drain_600 ml/day and brought to FHM for further management.

                   Physical Examination:

                   On  admission:

                   Semi Conscious, dull Patient sick looking, tachypnoeic, Tachycardia+ HR-156/Min, Pallor + No icterus No cyanosis, no clubbing, No lymphadenopathy, B/L Pedal edema. BP-110/50 mm Hg, Temp-Afebrile, Pulse rate 156  Min. RR40/min. Spo2.80 % on oxygen Chest B/L air entry decreased at bases.

Abdoman-Abdominal distension, midline incision, drain in situ-billous Guarding rigidity+

                   Course in the hospital:

                   Patient deteriorated and brought to the FHM for further management and condition of the patient sick looking, tachypnoeic and had tachycardia high coloured urine. On examination abdomen was distended, bowel sounds were sluggish with drain output of 30 ml. per hour. Working diagnosis of post open cholecystectomy billary peritonitis was made. Patient was resuscitated with IV fluid, admitted in ICU and started IV fluids, oxygen inhalation, RT aspiration, IV antibiotics (Inj)    

                   After consent clearance and PAC was taken up for exploratory Laproctomic+Adhesiolysis+Peritoneal lavage+ feeding jejunostomy on 11.11.2014.

                   OPERATIVE FINDINGS

                   Abdomen opened via previous midline incision. Thick billo-Purulent Fluid present in peritoneal cavity sent for culture and sensitivity. Dense pus flakes over bowel loops, abdominal wall and between bowel loops. Edematous bowel loops. Dense adhesious in sub-hepatic area with GB fossa empty/post cholecystectomy.  

                   Ritonela lavage done with 8-10 liter saline.

                   Edging jejunostomy made with 10F naso gastric tube.

                   ain placed in the abdominal cavity.

                   Demostatis achieved.

                   Death closure done.

                   SD done.

                   Antibitoic changed to Inj. Amikacin. Repeat CT whole abdomen done on 22.11.2014 showed collection in lesser sac and aspiration was done. Patient shifted to ward on 23.11.2014 after she became clinically stable. She had wound infection requiring daily dressings. Her counts improved. Now she is being discharged with follow up the medicines.

 

                   To prove the Annexure C-5 the treating doctor Atul S.Joshi M.S (PGI) FMAS Diplomate Laproscopy Surgery, Senior Consultant General & Minimal Access Surgery, Fortis Hospital, Mohali was examined by the complainant as CW2 who has clarified the condition of the patient when she was brought in their hospital and give the details of course done in the hospital during treatment at Mohali. This witness was not cross-examined by the OPs despite giving opportunity.

                             In view of the above findings of the Fortis Hospital we found the patient has suffered and had to undergo many surgical procedure to save her life.  

                   We have gone through the literature produced by the OPs as Annexure R7 regarding Gynecological Endoscopy and surgery. As per the heading INCIDENCE  OF LAPAROSCOPIC ENTRY COMPLICATIONS:

                    In Finland after 70607 laparoscopic procedures, 256 complications were reported to the national patient insurance association. The overall rate of major complications was 1.4 per 1,000 procedures. This included 0.6 per 1,000 intestinal injuries 0.3 per 1,000 urological injuries  and 0.1 Vascular injuries.

                    In the Netherlands, a multicentric prospective study from 72 hospitals revealed the overall incidence of intestinal injuries and major complications was 5.7 per 1,000 procedure 70 % of these were related to the primary port entry. The overall incidence of laparoscopic entry injuries was 3.3 per 1,000. There were 29 cases of gastrointestinal damage (1.3 per 1,000) and 27 and 27 cases of abdominal vessel injuries (1.05 per 1,000)                  

                             In view of the above literature such type of cases rarely suffers complications in expert hand. If at all complications occurred in this case, like bleeding but the treating doctors have failed to manage at their level properly and the condition of the patient continued deteriorated as admitted by the OPs as per treatment record produced by the doctor himself during the course of arguments and ultimately the patient was referred to higher institute as per above Annexure C5.

                   We are of the view that if the patient has not been referred she might have died. It appears from the available record issued by the Fortis Hospital i.e. history of the patient as well as course of the treatment given to the patient during her stay in the hospital as per Annexure C5, patient was resuscitated before any surgical procedure was undertaken by the Fortis Hospital. It is derived from the above said record Annexure C5 patient was serious and was not stable as per above said record.  It was for the treating doctors to produce the relevant record before this Forum either at the time of filing of reply or at the time of leading evidence but the same was produced during the course of arguments which shows that these documents are self prepared and have been created in order to fill up the lacuna. The treating doctors have mentioned in the treatment record that Patient sick looking, tachypnoeic and had tachycardia, high coloured urine and above said words are also mentioned in the treatment record Annexure C5 issued by Fortis Hospital in the column of course in the hospital. It appears that the treatment record produced by the treating doctors at the time of arguments is after-thought version. It is clear from this that the patient was never stable during the treatment given at OP No.1 hospital.

                   It is common knowledge Laproscopic cholecystectomy procedure is a routine surgical procedure with very rare surgical complication in the expert hands i.e. 1.5 % per 1000 cases. In this particular case patient had suffered injury to the vessel resulting an excessive bleeding intra peritoneal and subsequently patient suffered with Biliary peritonitis and biliary leakage as a result of injury to common duct (CBD) and post operative, she suffered bilateral pleural effusion and condition of the patient deteriorated to that extent. So we are of the confirmed view that the treating doctor was too callous in treating the patient by putting her life in danger because he got late in referring the patient.                          

                             We have also gone through the judgment delivered by Hon’ble Apex Court in case titled as “V. Kishan Rao vs. Nikhil Super Speciality Hospital& Another” 2010 (2) RCR Civil 161, Whereby in para No. 47, Hon’ble Supreme Court is held that 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 charge of negligence.

                             Law laid down by the Hon’ble Apex Court in case titled as “V. Kishan Rao vs. Nikhil Super Specialty Hospital& Another” 2010 (2) RCR Civil 161, wherein claim of the complainant cannot be rejected on the ground that the expert witness not examined to prove negligence of doctor –it is not required to have expert evidence in all cases of medical negligence. In the present case res ipsa loquitur principle is applied. The case laws titled as Dr.Sou Jayshree Ujwal Ingole Vs. State of  Maharashtra and another PLR  (2017-3) page 505 (SC), Kusum Sharma & ors. Vs. Batra Hospital & Medical Research Centre & others reported in 2010(2) RCR (Civil) 161, Martin F. D.Souza Vs. Mohd.Ishfaq AIR 2009 page 2049 (SC), Sukhraj Kaur Vs. Dr. Balkar Singh IV (2015) CPJ 460 (NC) and Vinayak Vs. Dr. Vijay Kumar Hariram Nainderkar Mrutunjaya Hospital & Ors.  III (2015) CPJ 661 (NC) relied upon by learned counsel for OPs are is not applicable to the case in hand and the same are being distinguished.

                   Hon’ble National Commission in case title as Tarun Thakore vs. Dr. Noshir M. Shroff (OOP No. 2015/2000 dated 24-09-2002) wherein the National Commission made some observation about the duties of doctor towards his patient. From those observations it is clear that one of the duties of the doctor towards his patient is a duty of care in deciding what treatment is to be given and also a duty to take care in the administration of the treatment.

9.                          It is proved on the file that the complainant has incurred the huge amount on her treatment during the stay at Fortis Hospital as well as in the hospital of Ops but at the time of argument this Forum had put a query about the status of reimbursement of the amount allegedly spent by the complainant during her treatment because she is a government employee. Thereafter, counsel for the complainant admitted that the expenses incurred by the complainant on her treatment has been reimbursed by the department as per the government norms. However, it has not been specifically disclosed as to which extent the amount has been reimbursed. Therefore, there is no need to give the expenses incurred on the medical treatment etc.  The complainant is entitled for the compensation on account of mental agony, harassment and physical pain and sufferings due to negligence on the part of treating doctors. It is not disputed that the complainant was admitted in the hospital/OP No.1 on 04.11.2014 and discharged on 10.11.2014 and due to her illness she was further admitted in Fortis Hospital on 10.11.2014 and discharged on 26.11.2014.

                             In view of the totality of the case and to meet the end of justice we assess the compensation of Rs.2 lac on account of negligency on the part of the treating doctors as discussed in above mentioned paragraphs of this order for mental agony, harassment, illness, pain and sufferings and on other counts etc. Thus, the complaint of the complainant is partly accepted with costs which is assessed at Rs.5,000/-.  The negligence occurred during the subsistence of the policy issued by Op No.4, therefore, being insurer, OP No.4 is directed to pay the awarded amount and to comply with the following directions within a period of 30 days from the date of receipt of copy of this order:-

2. Also to pay a sum of Rs.2,00,000/- as compensation for suffering pain, mental agony and harassment and amounting to Rs. 5,000/- as cost of proceeding within 30 days failing which this amount would carry 9 % interest for default period till realization.

 

Copy of this order be supplied to both the parties free of costs.  File be consigned after due compliance.

 

ANNOUNCED ON:      28.12.2017

                        

                           

                             (PUSHPENDER KUMAR)                         (D.N.ARORA)

                                      MEMBER                                 PRESIDENT