LAXMI DEVI. filed a consumer case on 20 Nov 2023 against J.N SHORY MULTI-SPECIALTY HOSPITAL. in the Panchkula Consumer Court. The case no is CC/286/2019 and the judgment uploaded on 09 Dec 2023.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.
Consumer Complaint No | : | 286 of 2019 |
Date of Institution | : | 23.05.2019 |
Date of Decision | : | 20.11.2023 |
Laxmi Devi aged 52 years wife of Late Shri Karam Chand, resident of Village Tipra, Tehsil Kalka, District Panchkula.
..….Complainant
Versus
1. J.N.Shory Multi Specialty Hospital, Nalagarh Road, Pinjore, District Panchkula through its Authorised Signatory Sh. Vimal Shory.
2. Dr. Vimal Shory son of Shri Jagan Nath Shory, Authorised Signatory of J.N.Shory Multi Specialty Hospital, Nalagarh Road, Pinjore, District Panchkula.
3. The Oriental Insurance Company, Oriental House A-25/27, Asaf Ali Road, New Delhi-110002.
……Opposite Parties
COMPLAINT UNDER
Before: Sh. Satpal, President.
Dr. Sushma Garg, Member.
Dr. Barhm Parkash Yadav, Member.
For the Parties: Sh. Amandeep Sharma, Advocate for the complainant.
Sh. Nitin Sood, Advocate for the OPs No.1 & 2.
Sh. Ashish Naik, Advocate for OP No.3.
ORDER
(Satpal, President)
1. The brief facts, as alleged, in the present complaint are that the husband of the complainant, namely, Sh.Karam Chand was having pain in his abdomen and after diagnosis his gall bladder was found distended, which showed multiple calculi in his lumen measuring 3mm to 4mm in size and in this regard, a report was prepared by Jindal Diagnostic Centre, Ram Nagar, National Highway, Kalka. It is stated that Shri Karam Chand was got admitted in the hospital of OP No.1 on 27.05.2017 for Elective Laparoscopic Cholecysterctomy and that, during his Laparoscopic Cholecystectomy; he suffered a Biliovascular injury on the operation table and the Laparoscopic Cholecystectomy was converted to open Cholecystectomy by the Ops. Since the OP No.2 was unable to manage the case due to his negligence in profession and seeing the serious condition, Shri Karam Chand was referred to PGI Chandigarh with an open abdomen with 7 vascular clamps in situ. It is submitted that the OPs in a very casual and negligent manner referred the husband of the complainant to PGI without providing proper medical facility. It is stated that Sh.Karam Chand was got admitted in PGI on 27.05.2017 and due to his deteriorating condition, he was re-operated in PGI Chandigarh on 28.05.2017 and after the operation, he was kept in ICU as his condition was not stable and ultimately he expired on 30.07.2017 in PGI Chandigarh. It is stated that during the treatment at PGI, Chandigarh the concerned doctors of PGI Chandigarh observed that Sh. Karam Chand had sustained major Biliovascular injury and Duodenal Injury during his attempted Laparoscopic Cholecystectomy. The reason for the death of Shri Karam Chand was given by the concerned doctors of PGI Chandigarh as cardiac arrest and the Major Biliovascular injury with Duodenal injury status post attempted Laparoscopic converted open Cholecystectomy. It is stated that, as per medico Legal summary issued by PGI Chandigarh liver of Sh.Karam Chand(now deceased) got failure due to the negligence on the part of the OPs and he could not survive and died on 30.07.2017. It is averred that OP No.2 is not having the required qualifications to conduct the surgical operation through Laparoscopic Cholecystectomy method. It was duty the of OP no.2 to arrange a team of experts having requisite qualifications, and wide experience so as to handle any complications, which might arise during the operation. It was further averred that OPs are running a hospital in a causal manner as there was no arrangement for blood transfusion. It is alleged that the OP No.2 was negligent in conducting the surgical operation on 27.05.2017 and caused the Major Biliovascular injury with Duodenal injury. It is further averred that the OP’s hospital was negligent and deficient, while shifting Sh. Karam Chand(now deceased) on 27.05.2017 to PGI Chandigarh. It is stated that Medical Board comprising of competent Doctors of Civil Hospital, Sector-6, Panchkula vide their report has found fault with OP No.2 vide report dated 08.11.2017(Annexure C-5) during operation of Sh.Karam Chand(now deceased) on 27.05.2017. Due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.
2. Upon notice, the OPs No.1 & 2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable; as the complainant is estopped by her own act and conduct; the complainant has not approached the Commission with clean hands. It is stated that the OP No.2-Dr.Vimal Shory did M.B.B.S from Government Medical College, Patiala and after completing M.B.B.S., he did his Post Graduate Degree i.e. Masters in Surgery from Dayanand Medical College, Ludhiana; Dr. Vimal Shory(OP No.2) worked as a Surgeon with Haryana Government for 23 years with place of postings in various places of Haryana and after that he took voluntary retirement from serviced(VRS) and started his individual/private practice for the last more than 7 years and, as such, he has a vast experience of 30 years as a Surgeon. Dr. Vimal Shory is having wide experience duly qualified and trained to do surgeries related to Gall Bladder and has performed more than 15000 Surgeries in his career without any complaint from any patient till date. It is stated that Sh.Karam Chand (now deceased) visited the OP No.1(Hospital) and consulted Dr.Vimal Shory(OP No.2) on 26.05.2017, complainant of having pain in his abdomen and told the OP No.2 that he had already checked himself from Government Hospital, Sector-6, Panchkula and they had advised to him for operation but the doctors at Government Hospital, Sector-6, Panchkula did not handed over any reports to him; he was advised to get his ultrasound done on 27.05.2017 from Jindal Diagnostic centre, Kalka; as per his ultrasound report, the presence of stone in Gall Bladder was found and after conducting the blood test, laproscopic operation was planned for 27.05.2017 at 07:00p.m. It is submitted that as soon as the Laproscopic operation was started, Dr.Vimal Shory(OP No.2) visualized a bunch of venous Plexus around Cystic Duct and Common Bile Duct(CBD), It is submitted that plexus are generally of two types i.e. Venous Plexous and Arterial Plexus and the walls of Arterial Plexus are strong and thick, whereas the walls of venous Plexus are very thin and can easily bleed. The bleeding from Arterial Plexus is in showers and one could see the source of bleeding and bleeding can be immediately stopped by surgical maneuvers i.e. by ligating, cauterizing, clamping etc. but bleeding from venous Plexus is diffused and, many a times, source of bleeding is uncertain. Plexus is a complex network of vessels and nerves and plexus may be normal or abnormal. In the present case of Sh. Karam Chand (now deceased) the plexus was unusual and abnormal. It is submitted that though the OP No.2 has performed more than 10000 of such type of surgeries during his practice, but has seen such type of plexus for the first time and even many surgeons including Head of Department of PGI or GMCH, Sector-32, Chandigarh might have also not seen this type of plexus during their entire practice as a Surgeon. It is further submitted that this type of plexus cannot be figured out pre-operatively through ultrasound in a routine investigation for Gall Bladder Stones. It is stated that when the OP No.2 caught hold of Gall Bladder, a sudden spurt of profuse bleeding had started and thereupon, he immediately stopped laproscopic procedure and the abdomen of Sh.Karam Chand(now deceased) was opened instantly but since the bleeding was uncontrollable and profused and source of bleeding could not be ascertained; and as such, he(OP No.2) did all the maneuvers to stop the bleeding i.e. sponging, suturing with pressure and arterial clamps were also applied(metalled instruments), and the bleeding stopped. It is submitted that after the bleeding stopped completely and the blood pressure started rising, the OP No.2 kept the clamp as such and put gauge (a piece of cotton used in surgery) and referred him i.e. Sh. Karam Chand(now deceased) to PGI, Chandigarh urgently in a stable condition for further management. It is submitted that Sh.Karam Chand(now deceased) was sent in the Ambulance of the OPs along with a Staff Nurse-Ruchi, OT Technician-Ashwani and Ambulance Driver-Som Nath and he reached PGI, Chandigarh in a stable condition and the staff of the OPs arranged all the medicines and also handed over Rs.10,000/- to the attendant of Sh. Karam Chand(now deceased). It is submitted that on 14.08.2018, an enquiry was conducted into the matter by the three Doctors at Civil Hospital, Panchkula and the said committee never opined that there was medical negligence or unfair trade practice on the part of the OP No.2, and which had opined that the case of Sh.Karam Chand(now deceased) was a rarest of a rare case and further hold that there was a mistake on the part of the OP while handling complication during Laproscopic Cholecystectomy. It is submitted that since it was a rarest of the rare case for every surgeon, so there was no medical negligence on the part of OP No.2. It is submitted that the OPs had provided proper treatment to Sh.Karam Chand(now deceased) and referred him to PGI, Chandigarh and he reached PGI, Chandigarh in a stable condition. Sh.Karam Chand(now deceased) was treated diligently, prudently, with utmost care and caution. It is stated that as per the guidelines for Medico Legal Cases, the Ops had taken utmost care and caution while treating Sh.Karam Chand(now deceased). The Hospital of Ops was fully equipped with all the facilities to perform surgery of Gall Bladder Stone upon Sh.Karam Chand(now deceased). The Ops have acted in line with standards upheld in Medical profession and there was no breach or negligence or deficiency on the part of the OPs; rather, the OPs provided the treatment to Sh.Karam Chand(now deceased)as per established medical practice. It is stated that if the Hon’ble Commission comes to the conclusion that there was any medical negligence or deficiency in service on the part of the OPs–Dr.Vimal Shory(which fact is emphatically denied), in that contingency, The Oriental Insurance Company Limited, Oriental House, A-25/27, Asaf Ali Road, New Delhi-110002 is liable to pay compensation because Dr.Vimal Shory, J.N. Shory Multi Specialty Hospital, Nalagarh Road, Pinjore has been insured for the period from 30.04.2018 to 29.04.2018 vide policy no. 272200/48/2019/1818 dated 27.04.2018.
On merits, the pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OPS No.1 & 2 and as such, the complaint of the complainant is liable to be dismissed.
3.Upon notices, the OP No.3 appeared through counsel and filed written statement raising preliminary objections that the present complaint against the OP No.3 is not maintainable as there is no medical negligence on the part of OPs No.1 & 2. It is submitted that the OP no.1 is duly insured with the OP No.3 under the professional indemnity insurance policy wherein it is clearly mentioned that the policy is relating to errors and omission on the part of professional whilst rendering their services; therefore, as per the policy given to the OP No.1 that the OP No.3 is only liable for the omission and error on the part of OP No.1 whilst rendering its services. If there is a medical negligence on the part of the doctor insured, then the OP No.3 is not liable as the company is only liable for the errors and omissions. It is also mentioned in the policy that any criminal act or any act committed in violation of any law or ordinance, the company is not liable for any compensation. It is also submitted that there is no medical negligence and deficiency on the part of OP No.1 and OP No.2. It is submitted that the OP No.2 is having vast experience as an surgeon and was duly qualified and trained to conduct surgery related to Gall Bladder and allegations leveled against him are totally wrong and denied. It is stated that the Ops No.1 & 2 provided proper treatment to Sh.Karam Chand (now deceased) who was referred to PGI, Chandigarh and he(Sh.Karam Chand(now deceased) reached PGI Chandigarh in a stable condition. He was treated properly, diligently and with utmost care and caution. The OP No.3 is not liable for any criminal act or any act committed in violation of any law or ordinance. As per the complainant, a FIR No.327 dated 16.011.2017 under Section 304-A was lodged in Police Station Pinjore, District Panchkula against the OPs No.1 & 2. Therefore, once the FIR has been registered against the OPs No.1 & 2 regarding a criminal act committed in violation of law or ordinance, then the OP No.3 is not liable for any compensation in view of the policy.
On merits, the pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.3 and as such, the complaint of the complainant is liable to be dismissed.
4.The learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-13 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OPs No.1 & 2 has tendered affidavit as Annexure R-A along with documents as Annexure R-1 to R-4 and closed the evidence. The OP No.3 did not submit its evidence in shape of affidavit along with documents etc. despite availing several opportunities; accordingly, its evidence was closed by the Commission on 01.04.2022.
5. We have heard the learned counsels for the complainant, OPs No.1 & 2 and OP No.3 and gone through the entire record available on file including written arguments filed by the complainant, OPs No.1 & 2 & OP No.3, minutely and carefully.
6.The learned counsel for the complainant, during arguments, reiterated the averments as made in the complaint as also in the affidavit(Annexure C-A) of the complainant and contended that Sh. Karam Chand(now deceased) had sustained Major Biliovascular Injury with Duodental Injury, which ultimately led to his death on 30.05.2017 at PGI Chandigarh, during his Laparoscopic Cholecystectomy by OP No.2 in OP No.1 hospital on 27.05.2017, due to the sheer negligence and carelessness on the part of the OP No.2. It is contended that the OP No.2 had not arranged the team of experts prior to the start of Laparoscopic Cholecystectomy of Sh. Karam Chand(now deceased) so as to tackle any complications arising out during the said operation. The learned counsel further contended that the OPs No.1 & 2 had rendered improper and deficient services, while shifting Sh.Karam Chand (now deceased) from J.N.Shory Multi Specialty Hospital (OP No.1) to PGI, Chandigarh and thus, it is prayed that the complaint is liable to be accepted by granting the relief as claimed for in the complaint. The learned counsel has placed reliance upon the findings given by the Enquiry Committee vide its report no.DMC PKL/2017/860 dated 08.11.2017 (Annexure C-5) in support of his contentions that there was medical negligence on the part of OP No.2.
7.On the other hand, the learned counsel for the OPs No.1 & 2 refuted the allegations as leveled by the complainant qua medical negligence on the part of the OP No.2, while conducting the Laparoscopic Cholecystectomy of Sh.Karam Chand(now deceased) on 27.05.2017. The learned counsel argued that the OP no.2 is a qualified surgeon, who did his Master in Surgery from Dayanand Medical College, Ludhiana (PB) and he is having the vast experience of 33 years as a surgeon. The learned counsel contended that the OP no.2 i.e. Dr.Vimal Shory has conducted more than 15000 surgical operation in his career without any complaint from any patient. The learned counsel reiterated the averments as made in the written statement as well as affidavit Annexure R-A, which may be summarized as under:-
8.The learned counsel on behalf of the OP No.3 reiterated the averments as made in its written statement and contended that Sh.Karam Chand (now deceased) was treated by OPs No.1 & 2 with due diligence and care and there was no negligence on their part. The learned counsel argued that the OP No.3 is liable only in case of error and omission and not in case of medical negligence. The learned counsel further arguedthat OP No.3 is not liable in the present matter as the complainant had lodged an FIR No.327 dated 16.11.2017 under Section 304A IPC, P.S. Pinjore and thus, the prayed for dismissal of the complaint qua OP No.3.
9.After hearing the learned counsel for the parties, it is found that the issue of medical negligence, on the part of Dr. Vimal Shory (OP No.2), during the Laparoscopic Cholecystectomy of Sh. Karam Chand (now deceased), on 27.05.2017, in at Pinjore, was referred to the Enquiry Committee by the Civil Surgeon, Panchkula vide his letter no. estb.17/399 dated 25.07.2017. The report of Enquiry Committee bearing no.DMC PKL/2017/860 dated 08.11.2017, is available on record as Annexure C-5.
10.There is no dispute between the parties qua the findings as recorded by the Enquiry Committee in its said report dated 08.11.2017 (Annexure C-5). As per said report dated 08.11.2017(Annexure C-5), the versions of both the parties i.e. complainant as well as the OPs No.1 & 2 were taken in writing on 14.09.2017 during enquiry and the relevant record from the PGI, Chandigarh was also obtained by the said Enquiry Committee.
11.As per the said enquiry report dated 08.11.2017(Annexure C-5) as also the Medico Legal Case summary(Annexure C-4) issued by the PGI, Chandigarh, Sh. Karam Chand(now deceased) had sustained the Major Biliovascular Injury with Duodental Injury, during his attempted Laparoscopic Cholecystectomy by OP No.2, on 27.05.2017. As per the said Enquiry Committee report dated 08.11.2017(Annexure C-5), the cause of death of Sh. Karam Chand(now deceased) was the Major Biliovascular Injury with Duodental Injury, which he had sustained during his attempted Laparoscopic Cholecystectomy by OP No.2, on 27.05.2017.
12.The Enquiry Committee has given its findings under the heading of “comments” in three paras. In the first para, the Committee has observed that the present case, was of rarest of the rare cases. It was also observed in the first para that 5-6 complications had arisen simultaneously during the Laparoscopic Cholecystectomy conducted at (OP No.1) on 27.05.2017. However, the Enquiry Committee, taking into consideration all the relevant factors, which were placed before it, has concluded in an unambiguous terms that there was an error on the part of OP No.2, while handling the complications, which had arisen during the Laparoscopic Cholecystectomy. As per said report of the Enquiry Committee, a surgeon having 30 years of experience was not expected to commit such kind of error/mistake, while handling complications. The Enquiry Committee in the last para of its findings has found that the services rendered by OPs No.1 & 2, while shifting Sh.Karam Chand(now deceased) from to PGI, Chandigarh were unsatisfactory.
13.Pertinently, the Enquiry Committee has given its report dated 08.11.2017(Annexure C-5) after giving due consideration to the respective submissions made before it by the complainant as well as OP No.2; thus, the submissions made by the learned counsel for Ops No.1 & 2 in the present complaint are not tenable.
14.With regard to the submissions made by the learned counsel for the OPs No.1 & 2 qua stay granted by the Hon’ble High Court pertaining to the criminal proceedings initiated in pursuance of the FIR No.327 dated 16.11.2017 under Section 304A IPC P.S. Pinjore, it is found that no stay was granted by the Hon’ble High Court vide order dated 30.08.2018 and 25.04.2019. Even otherwise, as per well settled legal proposition, the Civil and Criminal proceedings are quite distinct and separate from each other, which proceed simultaneously. Therefore, the plea raised by the learned counsel for the OPs No.1 & 2 qua the stay granted by the Hon’ble High Court is not tenable.
15.We find force and substance in the submissions of the complainant that the OP No.1, who claims to be a had failed to arrange the team of experts prior to the starting of Laparoscopic Cholecystectomy on 27.05.2017 so as to tackle the emergent health situation and complications, if any, arising out during the operation. The OP No.1, who claims itself to be a starting of Laparoscopic Cholecystectomy on, 27.05.2017, so as to tackle the emergent health situation and complications.
17.As per In-patient Admission record(Annexure C-3), Sh. Karam Chand(now deceased) was aged as 48 yearswhereas he has been shown as 55 years of age as per Medico-Legal Case Summary (Annexure C-4) issued by PGI, Chandigarh; thus, Late Sh.Karam Chand was agedaround 50 years at the time of his surgical operation on 27.05.2017 in the OP No.1 hospital. As per well settled legal position, the compensation should be reasonable, fair and justified and the same should be in proportionate to the act of omission, commission and negligence on the part of OPs. Keeping in view all the relevant factors in mind, in our considered opinion, it would meet the ends of justice, in case, the OPs No.1 to 3 are burdened with the compensation of Rs. 5 Lakhs (Rs. Five lakhs only) to the complainant.
18.The OP No.1 was insured with the Oriental Insurance Company i.e. OP No.3 w.e.f. 30.04.2018 to 29.04.2018 vide policy no.272200/48/2019/1818 dated 27.04.2018; therefore, the OPs No.1 & 2 as well as OP No.3 are held liable, jointly and severally, to compensate the complainant for the lapses and deficiency on the part of OPs No.1 & 2.
19.In relief, the complainant has claimed the refund of Rs.40,000/-, which were charged by OPs No.1 & 2 for the operation and treatment in question. However, the complainant had attached only two receipts dated 27.05.2017(Annexure C-8A & C-9) amounting to Rs. 5,000/- & Rs.1,000/- respectively. Further, the compensation of Rs.18,00,000/- has been claimed on account of death of Late Sh. Karam Chand, which had caused mental agony and harassment. The compensation of Rs. 55,000/- and Rs.30,000/- has claimed on account of litigation charges as well as cost.
20.Before parting with this order, we deem it proper to direct the OP No.1, who claims itself to be a multiple-specialty hospital, to ensure the availability of team of experts belonging to different medical field, in appropriate cases, prior to conducting of any surgical operation so as to tackle the emergent complications arising during the operation and accordingly, the OPs No.1 & 2 are directed to ensure that the team of an expert belonging to different medical field is arranged while conducting any surgical operationin future.
21.As a sequel to above discussion, we partly allow the present complaint with the following directions:-
22.The OPs No.1 to 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the awarded amount vide direction No.ii of para no.21 of this order shall carry an interest @ 9% from the date of this order till realization. The complainant shall also be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019, against the OPs No.1 to 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.
Announced on:20.11.2023
Dr. Barhm Parkash Yadav Dr.Sushma Garg Satpal
Member Member President
Note: Each and every page of this order has been duly signed by me.
Satpal President
CC.286 of 2019
Present: Sh. Amandeep Sharma, Advocate for the complainant.
Sh. Nitin Sood, Advocate for the OPs No.1 & 2.
Sh. Ashish Naik, Advocate for OP No.3.
Remaining arguments heard. Now, to come upon 20.11.2023 for orders.
Dt.06.11.2023
Dr.Barhm Parkash Yadav Dr.Sushma Garg Satpal
Member Member President
Present: Sh. Amandeep Sharma, Advocate for the complainant.
Sh. Nitin Sood, Advocate for the OPs No.1 & 2.
Sh. Ashish Naik, Advocate for OP No.3.
Vide a separate order of even date, the present complaint is hereby partly allowed against OPs No.1 to 3 with costs.
A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.
Dt. 20.11.2023
Dr.Barhm Parkash Yadav Dr.Sushma Garg Satpal
Member Member President
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