Haryana

Ambala

CC/50/2018

Baldev Singh - Complainant(s)

Versus

J.P. Surgical Hospital - Opp.Party(s)

O.P. Sharma

03 Oct 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint Case No.: 50 of 2018.

                                                          Date of Institution   :  06.02.2018.

                                                          Date of decision      :  03.10.2019

 

Sh. Baldev Singh son of Sh. Chetan Singh, aged about 47 years, resident of Nadiyali, Tehsil and District-Ambala.

                                                                             ……. Complainant.

                                                Versus

 

1. J.P Surgical Hospital & Endoscopy Urology Centre Situated at Civil Hospital Road, Opposite Govt. Polytechnic, Near Bada Thakurdwara, Ambala City through Dr.J.P.Gupta.
2. Apex Insurance Consultant Ltd. Reg. Office: 54, Vinobha Puri, Lajpat Nagar-II, New Delhi-110024 insurer of J.P.Surgical Hospital & Endoscopy urology Centre Situated at Civil Hospital Road, opposite Govt. Polytechnic, Near Bada Thakurdwara, Ambala City.
3. The Oriental Insurance Company Ltd., 4E/14, Ajad Bhawan, Jhandewal Exten. New Delhi-110055 through their Do Office Branch second floor Jeevan Jyoti Building, Jawahar Lal Nehru Marg, Jagadhari Road, Ambala Cantt Insurer of J.P.Surgical Hospital & Endoscopy urology Centre Situated at Civil Hospital Road, opposite Govt. Polytechnic, Near Bada Thakurdwara, Ambala City

           ..…..Opposite Parties.

         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                                                

Present:       Shri O.P. Sharma, Advocate, counsel for the complainant.

Shri Tarun Mehta, Advocate, counsel for the OP No.1.

Shri S.S. Garg, Advocate, counsel for the OP No.2.      

Shri Rajeev Sachdeva, Advocate, counsel for the OP No.3

 

Order:        Smt. Neena Sandhu, President.

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay Rs.6,00,000/- as compensation for the mental agony,  physical harassment, financial Loss and health problem suffered by him.
382.  

Any other relief which this Hon’ble Forum may deem fit.

 

Brief facts of the case are that on 03.07.2017 the complainant felt acute pain in his abdomen and went to Leelawati Hospital, Ambala City, where Dr. Manmeet Singh treated him and on his advise got conducted an ultrasound of his abdomen at Gobind Ultrasound Centre, Ambala City and two stones were detected in Gall Bladder/abdomen. Dr. Manmeet Singh provided him first aid treatment and after taking some medicines he returned home. He again felt acute pain in his abdomen and went to the hospital of OP No.1, for better treatment. After seeing the report of ultrasound and other treatment record, the OP No.1, assured him to provide better treatment. On the asking of the OP No.1, he remained admitted in the hospital from 05.07.2017 to 08.07.2017 and the doctor conducted operation and assured that both the stones from his abdomen have been removed. The said doctor further assured him that he will not feel any pain in future as he has removed the Gall-Bladder/Pitta, which had stones. The OP No.1 discharged him on 08.07.2017 and instructed to take continuous treatment/medicines until further advise/instructions of the OP No.1. However, he was having continuous pain due to the stones and he contacted the OP No.1, who advised him to take some pain killer. On 25.07.2017, he had acute pain in his urine tube and abdomen, he reported the OP No.1 and on his advise got conducted another ultrasound from Govind Ultrasound Centre Ambala City. On the basis of the ultrasound report, the concerned doctor of the Govind Hospital, told him that the OP No.1 had conducted the operation negligently and both the stone still present/remained in the body and one stone rolled up and moved forward in the urine tube. He got shocked to know this fact.  In the month of August 2017, he visited the OP No.1, who was highly regretful for his negligence and referred him to PGI, Chandigarh for further treatment, but due to some family problem, he could not go to PGI for treatment. As he was having acute pain in his abdomen and urine tube, therefore, he went to Aadesh Hospital at Village Mohra Ambala Cantt for treatment but could not get any relief.  He kept on wondering around for better treatment from one place to another place to get some relief. From 10.08.2017 to 02.09.2017, he took treatment from the Hospital of Dr. Umesh Mehta, Vikas Vihar Ambala City, but could not get any relief. On 04.12.2017, he went to the MM Hospital, Mullana for treatment. One ultrasound was conducted at Aggarwal Ultrasound Centre, Sector 9 at Ambala City and it was found that both the stones were present in the body i.e abdomen and Urine Tube. Thereafter, he took treatment from Jaspal Hospital, Model Town Ambala City. The doctor told him that two stones still present in his body as shown in previous ultrasound reports. He also told him that one stone moved in the Urine Tube, due to operation conducted negligently by the OP No.1.  He got removed the said stone from Fortis Hospital, Chandigarh through endoscopy. Doctors of Jaspal Hospital and Fortis Hospital advised him to get conducted the another operation after some time for removal of the remaining stone. He was taking treatment from Jaspal Hospital and Fortis Hospital continuously and on bed since 03.07.2017 to till date. Due to the negligence of the OP No.1, the complainant has suffered a lot of mental agony, physical harassment and financial loss. Hence, the present complaint.

2.                Upon notice, OP No.1 appeared through counsel and filed written version and raised preliminary objections regarding maintainability and jurisdiction. On merits, it is stated that on 05.07.2017, the complainant about 49 year male patient having ultrasound scan report dated 03.07.2017 from Gobind Ultrasound, Ambala City, accompanied by his relatives visited the hospital of OP No.1 for specific complainant of acute pain in epigastrium radiating to back and right shoulder for the last 2-3 months and burning sensation in epigastrium, for which he had already been taking treatment from Dr. Manmeet of Leelawati Hospital. He was not having history of jaundice, fever, hypertension, diabetic mellitus, asthma but was alcoholic. On examination, his BP was found 140/90 mmhg, pulse 80/mm, chest-CVS had no abnormality, there was tenderness in the epigastrium report of ultrasound showed chronic Cholelithiasis with gall stones and hepatomegaly. A provisional diagnose of chronic Cholelithiasis with gall stones with hepatomegaly was made and was advised further investigation and surgery. The patient also thoroughly examined and found fit for operation, by the expert Anaesthetist Dr. Nidhi Garg. All routine investigation was carried out. After explaining all pros and cons to the patient as well as relatives, the operation of the patient for cholecystectomy after taking consent was conducted by the OP No.1 on 06.07.2017, laparoscopically with the help of anaesthetist under GA. During the operation it was noticed that Omentum was adherent to GB, which was separated avoiding any injury to vital organ. Adhesions were also present in callots triangle which was also separated out. Cystic artery & cystic duct were identified and dissected. The cystic artery was clipped and cut and cystic duct was palpated with Maryland grasper to rule out presence of stones and milk upwards towards the gallbladder. The cystic duct was clipped and cut in between the clips. CBD was identified and was not dilated. The GB was separated from its bed and successfully having stones as shown i.e cholecystectomy was done. Haemostasis was achieved and drain was put in GB fossa which was washed with saline. Drain was put in GB fossa. Taken out GB was cut open and two stones found were shown to the relatives and thereafter GB was sent for histopathological examination. Treatment chart was prepared. On 07.07.2017, the patient was well, vitals were stable and drain output was 30ml blood stained. On 08.07.2017, also the patient was stable. BP, pulse and temperature were normal, drain output was 5-10ml. Drain was removed and dressing was done, abdomen was soft and patient passed flatus. The wound was healthy. Since the patient improved, taking orally and was mobile, therefore the patient was discharged on 08.07.2017, with discharge summary and investigations were handed over to the patient’s relatives with advice for follow-up and removal of stitches after one week. The patient was well and discharged in a satisfactory condition on 08.07.2017 and was also not having any problem even on 15.07.2017 when visited for removal of stitches.  At the time of removal of the stitches he did not complain any pain or any problem, as such he was advised medication. On 25.07.2017, the complainant visited the hospital with complaint of epigastric discomfort and pain, for which he was advised ultrasound. The complainant again visited the hospital on 03.08.2017 with ultrasound report dated 25.07.2017 from Gobind Ultrasound, Ambala City which showed that GB was not visualised, CBD at porta hepatis is 2mm and shows echofree lumen i.e CBD was not dilated and there was no stone, however anechoic thin walled structure was seen in GB fossa, for that MRCP was advised, as such the patient was prescribed medication accordingly and follow-up. As per the prescription slip filed by the complainant, the pain had considerably reduced and he was advised for further follow-up but he did not turn up.  As per the document placed on record it is evident that the complainant had gone to Adesh Medical College & Hospital on 10.08.2017 for treatment and MRCP according to the said report the CBD was normal and there were multiloculated cystic legion with smooth wall fluid contents and multiple filling defects in GB fossa suggestive of post-operative collection/residual GB and mild hepatomegaly. The complainant has alleged that he took treatment from Dr. Umesh Mehta from 10.08.2017 to 02.09.2017 but has not placed on record any document, therefore the presumption is against the complainant for intentional withholding of the record. on 10.08.2017, the complainant visited the hospital of OP No.1, after having undergone MRCP procedure in Adesh Medical College & Hospital and after seeing the report on 12.08.2017, the complainant was referred to PGI Chandigarh for ‘post cholecystectomy syndrome’ for further evaluation and treatment, but the complainant as per record did not adhere to the advice of the OP No.1 and did not take any treatment for about 4 months as per the absence of any medical record till the time the as per record the complainant in December 2017 got treatment from Dr.Sanjay Aggarwal and also from Fortis Hospital, Mohali and Dr.Duke P.Jaspal of Jaspal Nursing Home. Thus, the complainant was negligent in not getting any treatment from August 2017 till December 2017 or it can also be reasonably concluded and presumed that from August 2017 till December 2017 the complainant was not having any problem. The post-operative medical record including report ERCP from other medical experts subsequent to the discharge from the hospital of the OP No.1 do not show any kind of negligence on the part of OP No.1. The OP No.1 has not committed any medical negligence, therefore, the complaint filed against it, deserves dismissal.

                   Upon notice, OP No.2 appeared through counsel and filed written version. On merits, it is stated that the OP No.2 is M/s Apex Insurance Consultant Limited and he has no roll for treatment of the patient. It is further stated that OP No.1 was not insured by OP No.2. Dr. Jai Parkash Gupta, is insured with “The Oriental Insurance Company Ltd, 4E/14, Azad Bhawan Jhandelwalan, New Delhi-55, through its professional indemnity vide Insurance Policy bearing No. Is 272200/48/2017/14785 effective from 20.10.2016 to 19.10.2017. There is no relation between the complainant and OP No.2. The OP No.2 has not committed any deficiency in service, thus, the complaint filed against it, deserves dismissal with costs.

Upon notice, OP No.3 appeared through counsel and filed written version and raised preliminary objections regarding maintainability, non-joinder & mis-joinder and cause of action. On merits, it is stated that the Dr. Jai Parkash Gupta, had taken in the insurance policy from it. The said doctor treated the complainant after conducting all the necessary investigations and test and has given the best treatment to him. There is no medical negligence on the part of the doctor, therefore, it is not liable to indemnify the complainant. The complaint filed against it deserved dismissal with costs.

3.                The learned counsel for the complainant tendered affidavit of complainant as Annexure CA alongwith documents as Annexure C-1 to C-45 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OP No.1 tendered affidavit of Dr. Jai Parkash Gupta, C/o J.P. Surgical hospital, as General Surgeon and Urologist, Ambala City as Annexure OP1/A alongwith documents Annexure R1 to R10 and closed the evidence on behalf of OP No.1. The learned counsel for OP No.2 tendered affidavit of Satya Parkash as Annexure OP2/A and closed the evidence on behalf of OP No.2. On the other hand learned Counsel for OP No.3 tendered affidavit of S.K. Madan, Authorized Signatory for the Oriental Insurance Company, Ambala as Annexure OP3/A along with documents Annexure OP3/1 and OP3/2 and closed the evidence on behalf of OP No.3.

4.                We have heard the learned counsel for parties and carefully gone through the case file and also the written arguments filed by the learned counsel for the OP No.1 and the case law referred by the ld. Counsel for the OP No.1.                  

5.                The learned counsel for the complainant argued that the complainant was having stones in his gall-bladder and went to the OP No.1 for treatment. On 05.07.2017, the OP No.1 admitted the complainant in the hospital and conducted surgery for removal of stones and discharged him on 08.07.2017. The OP No.1 assured the complainant that he will not have any pain in future as he has removed the gall-bladder along with stones. However, on 25.07.2017 i.e. after 15 days of operation, the complainant was having acute pain in the abdomen and he again visited the OP No.1. The OP No.1 advised him to get another ultrasound done from Govind Ultrasound, Ambala City. The sonographer/Doctor of the said diagnostic centre told the complainant that operation was conducted negligently and the Doctor failed to remove the stone from his body, which rolled up and moved in his urine tube. The complainant again visited the OP No.1, who referred him to PGI, Chandigarh for further treatment. On 04.12.2017, another ultrasound was conducted at Aggarwal Ultrasound Centre and it was found that both the stones were present in the abdomen, in urine tube. Thereafter, complainant went to Jaspal Hospital, Ambala City, for treatment. The doctor told him that two stones still present in the body of the complainant, as shown in the above mentioned ultrasound reports and also told that one stone moved in the urine tube, due to operation done by the OP No.1 negligently. For removal of the stones, second surgery was conducted in the Fortis Hospital. Due to surgery performed by OP No.1 negligently, the complainant has suffered a lot of mental agony, physical harassment and monetary loss, therefore, the OP No.1 may be directed to compensate the complainant as prayed for in the complaint.

6.                The Learned counsel for the OP No.1 vehemently argued that as per ultrasound scan report dated 03.07.2017 of Govind Ultrasound, Ambala City (Annexure C-1), there was stone in the gall bladder of the complainant. The Doctor of OP No.1 hospital, who is well qualified, with his reasonable competence/skill had removed the gall bladder alongwith the stones. The removed gall bladder was sent to Maitri Diagnostic Lab, New Delhi for further investigation. From the histopathology report dated 15.07.2017 (Annexure R-8), it is quite clear that two pigmented stones were present in the gall bladder. In the ultrasound reports referred to above, which were conducted after the surgery done by the OP No.1, it has categorically been mentioned that the gall bladder of the complainant had been removed. Thus, it has been proved beyond any doubt that the stones of the gall-bladder had been removed by the OP No.1, once the stones lying in the gall-bladder had been removed then the question of rolling up and moving the stone in the urine tube does not arise at all. If any stone developed in any other organ of the complainant, subsequently, then OP No.1 cannot be blamed for that. No cogent evidence has been placed on record by the complainant to prove that there was medical negligence on the part of the OP No.1, therefore, the present complaint filed against the OP No.1 may kindly be dismissed with heavy costs. In support of his contention, the Learned Counsel for OP No.1 has placed reliance upon the judgement of Hon’ble Supreme Court in the case titled as Dr. S.K. Jhunjhunwala Versus Mrs. Dhanwanti Kumar & Anr., 2018(4) RCR (Civil) 625, wherein, it has been held that the complainant under legal obligation to prove a specific kind of negligence on part of appellant/Doctor in performing surgery and also was required to prove that any subsequent ailment which she suffered on her return to home such as, jaundice, dysentery, fever, loss of weight etc. were suffered by her only due to improper performance of conventional surgery by appellant/doctor and if surgery had been successful, she would not have suffered any kind of these ailments. Complainant failed to prove that ailments which she suffered after she returned home from hospital were as a result of faulty surgery performed by appellant/doctor. He has further placed reliance upon the judgment passed by Hon’ble Supreme Court of India, in case titled as Kusum Sharma & others Versus Batra hospital & Medical Research Centre & Others 2010(2) RCR (Civil) 161, wherein it has been held that doctors not guilty of medical negligence as long as they perform their duties and exercise ordinary degree of professional skill and competence.

7.                The Learned counsel for the OP No.2 argued that it has no privity of contract with the complainant. Neither the hospital nor the doctor was insured with it, therefore, it has no role to play. The complainant has unnecessary dragged it into uncalled for litigation, therefore, the present complaint filed against it may kindly be dismissed with heavy costs.

8.                The Learned counsel for OP No.3 argued that the Dr. Jai Parkash Gupta was duly insured with it. From the record it is borne out that there is no medical negligence on the part of the Doctor, therefore, it is not liable to indemnify the complainant. The present complaint filed against it may be dismissed with heavy costs.  

9.                No doubt the complainant has alleged that the doctors from whom he had taken the treatment, after the surgery done by the OP No.1, told him that OP No.1 had conducted the surgery negligently and failed to remove the stones from the gall-bladder, but to prove this fact he has not produced any iota of evidence. He has also not placed on record any opinion of some medical expert, whereas from the histopathology report dated 15.07.2017. It is crystal clear that the two pigmented stones were present in the gall-bladder/cholecystectomy. This fact further got fortified from the reports of Ultrasound, which were conducted, after the operation done by the OP No.1. In this view of the matter, we do not hesitate to hold that the complainant has failed to prove any medical negligence on the part of the OP No.1 and the complaint filed by him is devoid of merits. Consequently, we dismiss the present complaint without any order as to costs. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 03.10.2019.

 

 

 

          (Vinod Kumar Sharma)        (Ruby Sharma)                   (Neena Sandhu)

              Member                             Member                            President