Complainant Basant Singh, Retd. Subedar Major vide the present complaint filed U/s 12 of the Consumer Protection Act’ 1986 ( for short, the Act) has prayed that the titled opposite parties namely: i) Jeewan Hospital, Amritsar (hereinafter, called the OP1), ii) Dr Kamaljeet Singh (hereinafter, the OP2), iii) ECHS Policlinic Batala (called, the OP3 ) and The New India Assurance Company, Amritsar (called, the OP4); be directed to pay him Rs.18 Lac as compensation and damages to him alongwith interest@ 8% per annum on the amount till its realization. Opposite parties be further directed to pay Rs.20,000/- towards mental agony and Rs.5,000/- as litigation expenses, all in the interest of justice.
2. The case of the complainant in brief is that he is a member of Ex-servicemen Contributory Health Scheme vide membership no.CDOO26479 and his dependant policlinic is opposite party no.3. In the year 2012 he suffered urine problem and he got medicine from ECH Policlinic Batala where he was advised to get Ultrasound of abdomen and accordingly he got abdomen ultrasound four times i.e. twice from Bedi Ultrasound Batala and once from Walia Scanning Centre Batala and thereafter one from Nijjar Scanning Amritsar and for these purposes he spent money from his own pocket. He has next pleaded that on 4.12.2012, he produced all the ultrasounds before the Policlinic Batala opposite party no.3 and they advised to get TURP operation and according they referred him to Jeevanjot Hospital, Amritsar who got prepared estimate of operation which was sanctioned by Officer-in-charge opposite party no.3. After preparation of estimate of operation and sanctioned by officer incharge opposite party no.3 he reported to opposite party no.1 on 13.12.2012 and they gave the date for TURP operation for 14.12.2012 and the same was done on the same day and discharged on Catheter from Jeevanjot Hospital on 19.12.2012 and was advised to get the Catheter removed after seven days. Opposite party no.1 called opposite party no.2 from Dr.Karam Singh Memorial Orthopaedic & Multi Speciality Hospital and Research Centre for conducting TURP operation. He has further pleaded that while he was admitted at Jeevanjot Hospital he was also fitted with catheter that bleeding was started from penas with outer portion of catheter pipe but the doctor incharge paid no heed and said that it does not matter and it will become all right automatically when he left hospital and on 18.12.12 when the doctor incharge advised him to discharge at that time he was suffering of continuous of urine and heaviness of the lower portion and on his request doctor retained him for one day more and discharged him on 19.12.2012 fitted with catheter. On 26.12.12 he reported again at Jeevanjot Hospital and his catheter was removed and some medicines were given to him and after removing the catheter doctor advised him to take water and store the urine and after some time doctor called him and asked him to urine but he replied that he has already urine twice and also complained that urine is coming continuously by drop and drop and his lower portion has become heavy and the doctor said that it will become all right with medicines provided to him. After 26.12.12 while he was at his home his urine became continuous oozing and he felt pain and heaviness in the lower region and he talked on phone to the opposite party no.2 regarding the trouble but opposite party no.2 suggested to come on 5.1.2013 and he again reported to opposite party no.2 and he explained the whole story regarding the trouble and the opposite party no.2 gave some medicine but he did not get any relief. Thereafter he got referral letter from opposite party no.3 for Fortis Escort Hospital, Amritsar for consultation where he was thoroughly examined, he was got admitted in the Fortis Escort Hospital Amritsar and was diagnosed and the urine was passed by fitting the SPC and discharged from there on 26.1.2013 and advised for follow check up. He got treatment from Fortis Escort Hospital Amritsar up till 25.2.2013 but he did not get any relief. On 12.4.2013 he again admitted in the same hospital where RGU/ICU was carried out and was discharged on 18.4.2013 and advised to come on 24.4.2013 alongwith referral letter and sanction for cystoscopic examination under GA and Laser EIU/Long Segment and Urethra Stricture for the total cost of Rs.37,875/- which he got sanctioned from SEMO 172 Military Hospital but the SEMO signed the letter with remarks “refer patient to service hospital or do the list procedure only” as the above treatment was not in the listed procedure of Fortis Hospital Amritsar and on production of letter to the hospital they did not accept. Lastly he deposited an advance of Rs.10,000/- and thereafter Rs.62,000/- and final bill of Rs.56,959/- and Rs.5041/- was refunded to him. He has next pleaded that after discharge from Fortis Escorts Hospital, Amritsar he contacted Mr.Kamaljeet Singh Urologist who did TURP on 14.12.2012 at Jeevanjot Hospital at Karam Singh Memorial Hospital Amritsar and he advised to go to Army Hospital (R & R) Delhi Cant because there is no treatment of this disease available at Amritsar. Accordingly, he went the hospital on 31.5.2013 and there he advised to get some tests and accordingly he got all tests completed and have the date 12.6.2013 for conducting some operation but the operation was not successful and after giving treatment for 18.6.2013 he was discharged from Army Hospital (R&R) on 19.6.2013. There was no solution of his disease and he was advised to get the urine bye-pass in some other way i.e. mitrofanoff and he advised him to come on 8.8.2013 for doing mitrofanoff on 12.8.2013. He has next pleaded that after discharge from Fortis Escorts Hospital Amritsar he consulted many Urologists at Ludhiana i.e. Apollo Hospital, C.M.C. Khosla Hospital Ludhiana, Dr.B.S.Aujla (Ex-DMC) for doing the needful but they shown their inability to get the disease cure and said in case his operation is done, there is apprehension of continuance of urine as the vital organ already cut off at the time TURP and all this came into his notice after consulting several doctors. When he was at Army Hospital (R& R) Delhi, he contacted AIMS Hospital and Sir Ganga Ram Hospital Delhi but they have also shown their inability to get the operation completed and advised not to get the Mintrofanoff system fitted as it is the last choice and advised to keep this SPC fitted permanent for life time. Now he is living miserable life with duly fitted SPC (catheter). He has to change it after one month frequency and spend approximately Rs.600/- per month in addition he is getting medicine Cyst open cost of per tablet Rs.50/- continuously since 3.5.2013 twice a day till now. Due to this problem created by the opposite parties no.1 and 2 he cannot do any work and unable to earn his livelihood for himself as well as his family member. He cannot walk properly and sit and is unable to do any work. This all is to face by him due to the negligence of the opposite parties. Hence this complaint.
3. Notice of the complaint was issued to the opposite parties. Opposite party no.1 and 2 has appeared through their counsel and filed their joint written reply taking the preliminary objections that complaint is barred from filing the present complaint, which is liable to be dismissed and challenged the maintainability of the complaint and other objections have been raised. On merits, it was submitted that as per record of Jeevanjot Hospital and other record, the patient named Basant Singh was admitted in Jeevan Jot Hospital on 13 Dec 2012 as a case already diagnosed case of benign prostatic hyperplasia for TURP operation. In the ultrasound of the patient showed 39gm prostate with increased residual urine with trabeculations and psedo diverticulae formation. After initial assessment patient was posted for surgery on 14 Dec. 2012. Before the surgery the patient was informed in detail about the nature of surgery and written signed consent was taken from the patient. Ultrasounds were done. Before taking up for surgery in OP No.1 hospital, complete work up of the patient was done which showed total Leukocyte Count of 8400 with Neutrophil counts of 66%. The urine routine microscopy showed presence of 0-2 pus cells. The patient was started on antibiotics Taxim and Amikacin preoperatively for 24 hours before taking up patient for surgery. On 14 Dec. 2012 the operation was done. The patient was re-catheterized on 19.12.12 and was discharged on medical management and recalled after 7 days for removal of catheter. It has been further submitted that histopathology report showed presence of chronic lymphocytic infiltrates with appearance of Benign Prostatic Hyperplasia with no definite evidence of Glaucomatous or malignancy. The Foleys catheter was removed on 26 Dec. 2012 and patient passed urine and was sent home with antibiotics and anticholinergic which are normally prescribed in such situations and was called in follow up on 5.1.2013. The patient did not complaint of any major urinary problem or symptoms on 26.12.2012. The patient complained of urgency and urge incontinence second time on his follow up on 5.1.2013. Immediate urine culture was advised and urine culture showed growth of Staphylococcus Coagulase negative organism which was sensitive to Amikacin, Nitrofurantoin and Linezolid. This organism is commonly present on the skin of an individual and nature of organism in this case showed multi drug resistant pattern. The patient was started on antibiotics (Nitrofurantoin and Linezolid) asked for follow up after 10 days. The patient was further advised to maintain good hygiene of the local (private) parts. The patient never came back subsequently and was lost in follow up. It has been next stated that in CMG two catheters are placed, one per urethrally and another in the anal canal. If the urethra had been cut off in the first surgery how could the investigator pass the per urethral catheter. Only antibiotic that was given at time of foleys change that is on 25.2.13. That means the patient was without antibiotic cover for nearly 25 days. The patient was given Prullifloxacin on 25.3.2013 and was advised to get urine culture done and the same was done on 7.4.2013 showed no growth and patient underwent RGU + MCU on 12 April and immediately went into URO SEPSIS and was admitted in Fortis Hospital on 12 April 2013. It has been further submitted that the patient was a case of benign prostatic hyperplasia which is common at this age and the patient has variety of problems because of this prostatic enlargement. The delay in treatment can lead to increase in the residual urine and formation of trabeculations and diverticulae in the urinary bladder. It has been next stated that the patient developed urethral stricture post TURP which he blame on the surgery is totally false. Infact the patient developed narrowing of the urethra due to infection and his inadequate follow up and inadequate antibiotic intake which has lead to increase in infection episodes and subsequently stricture in the bulbar urethra which is the most common site to have infective urethral stricture. Twice endoscopic assessment done in the patient showed resection of the prostate but also showed presence of debris which itself indicates presence of infection. Thus there is no deficiency in service on the part of the opposite parties. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.
4. In written statement opposite party no.3 taking the preliminary objections that there is no deficiency in service on the part of the opposite party as such the complaint is liable to be dismissed against the opposite party on this score alone and the complaint is not maintainable as the complainant has concealed the material facts from this Forum regarding filing of complaint which was earlier dismissed as withdrawn on 28.1.2014 and as such the complainant be burdened with special costs to the tune of Rs.50,000/-. On merits, it was submitted that no specific record of treatment is kept in the ECHS Polyclinic as and when patient come he is given sympathetic treatment by Medical Officer. In case treating doctor needs any investigation, he refers the patient to empanel facility on referral form. There is no empanel Hospital/lab/scan facility available locally at Batala. The patient decided to get these investigations done at their own convenience and expenses, to avoid travelling to empanel facility at Amritsar. It was further submitted that as per procedure the doctor at ECHS Polyclinic Batala i.e. opposite party during OPD, depending upon findings of investigation refer the patient to an empanel facility for consultation and depending upon advice of the specified specialist, patient is given permission on a referral form. Accordingly the complainant was given Referral form for Jeewanjot Hospital, Amritsar, an empanelled facility for his urinary problem with his consent and endorsement to this affect is done on referral form. The complainant also referred to Urologist at Fortis Escort Hospital, Amritsar for consultation and further treatment, the record of which is held by the treating Hospital. The ECHS Polyclinic have been setup for providing service to the Ex-Serviceman under a Scheme and the referral letters are given to the patient for their better treatment from specialized doctor of empanel hospital. It has been next submitted that the complainant was advised procedure by treating doctors which comes in non-listed category of procedure and not listed memorandum of agreement with ECHS. All non-listed procedures can be performed by only after getting permission from senior Executive Medical Officer of service Hospital of that speciality. Accordingly the complainant was advised to go to a Service Hospital for further treatment, otherwise he can go in for non-listed procedure. Accordingly, the complainant decided to get his treatment from non-list procedure on advise of Doctor S.K.Bhagat at his own expenses, though there was a listed procedure available for same problem as was advised by SEMO. There is no deficiency in service on the part of the opposite party no.3. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismissed with costs.
5. Opposite party no.4 in its written statement taking the preliminary objections that of maintainability of the complaint, complaint is without any cause of action, time barred, complainant is not the consumer under the Consumer Protection Act and the opposite party is not liable to compensate the complainant against abovesaid policy as the insured has breached the terms and conditions no.10.1 of the policy by not giving any written notice to the company in respect to the abovesaid claim case. The insured failed to forward all documents relating to the abovesaid claim case to the opposite party thus breached the conditions no.10.1 of the policy. That from the facts of the complaint case the opposite party is not liable to indemnify the insured as this case is not covered under the clauses of the insurance policy. However, if the complainant proved his case to come under the clauses of the insurance policy, the liability of the respondent is limited upto ten lacs less Compulsory Excess of Rs.2500/-. On merits, it was submitted that the insured failed to forward all documents relating to the abovesaid complaint case to the respondent thus breached the conditions no.10.1 of the policy. That from the facts of the complaint case the opposite party is not liable to indemnify the insured as this case is not covered under the clauses of the insurance policy. However, if the complainant proves his case to come under the clauses of the insurance policy, the liability of the respondent is limited upto ten lacs less Compulsory Excess of Rs.2500/-. So, the opposite party is not liable to compensate the complainant against abovesaid policy. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs.
6. Complainant has tendered into evidence his own affidavit Ex.C1, along with other documents Ex.C2 to Ex.C66 except Ex.C17 and closed the evidence.
7. Dr.Kamaljit Singh M.S. M.Ch of the opposite parties No.1 & 2 has tendered into evidence his own affidavit Ex.OP-1,2/1, affidavits of Dr.Gurjit M.S.Chief Surgeon Ex.OP1,2/2,of Dr.Shailenderjeet Singh M.B.B.S. M.S. (Ortho) Ex.OP1-2/3 and of Dr.Brij Bhushan Goyal M.B.B.S. M.S.(Surgery) Ex.OP-1,2/4 along with other document Ex.OP-1,2/5 and closed the evidence
8. Ex-Hav Paramjit Singh of ECHS Polyclinic Batala has tendered his own
Affidavit Ex.OP-3/1 and closed the evidence.
9. Sh.Shiv Lal, Branch Manager the New India Assurance Company Limited has
tendered his own affidavit Ex.OP4/1, alongwith other documents Ex.OP4/2 and Ex.OP4/3 and closed the evidence.
10. We have duly considered the pleadings of both the parties; heard the arguments advanced by their counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the purpose of adjudication of the present complaint.
11. From the pleadings and evidence on record we observe that the complainant has failed to produce (on records) any cogent evidence or even otherwise any evidentiary-valued document supporting his prime allegation of the ‘un-successful’ & ‘mal-functional’ TURP surgery/procedure as was performed on 14.12.2012 by the OP2 Urologist at the OP1 Hospital. The complainants’ passing the urine (from 26.12.2012 to 05.01.2013) through the natural tract (in the layman’s words) though with the associated post-operative complication and ‘un-ease’ sufficiently proves that no ‘vital organ’ stood ‘cut-off’ during the TURP surgery in question as alleged in the paragraph ‘9’ of the present complaint. On the other hand the OP1 Hospital & the OP2 Surgeon has successfully proved on record and beyond the reasonable doubt that the real culprit-cause has been the ‘post-operative grave infection’ and not the alleged ‘want and/ or void’ in the TURP procedure at the OP’s end. We are also convinced with the OP’s plea that the post operative complications including its collateral infections are complex in nature and certainly not the corrective surgery and that too performed satisfactorily as per the records. The basic issue involved in the present case is whether the charge of medical negligence against the opposite party doctor is proved from the facts and circumstances on record. The subject of medical negligence has been dealt with at length in several landmark judgments, given by the Hon’ble Apex Court. In Jacob Mathew Vs. State of Punjab, 2005(3) CLT 358 (SC) = 2005 (6) SCC 1, the Hon’ble Apex Court, held as follows:-
“(1) 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 three: “duty”, “breach” and “resulting damage”.
In the abvesaid judgment, the Hon’ble Apex Court also stated as follows:-
“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.”
12. The facts of the present case bring out clearly that the opposite party no.2 Dr.Kamaljeet Singh, performed his duty with reasonable care and caution, which could be expected from an ordinary skilled person and hence, applying the yardstick enunciated in Jacob Mathew case (supra), the charge of medical negligence against the doctor does not stand proved.
13. Further, the main complaint failing to hold water (at its prime allegation) the favorable findings as to its ‘maintainability’ and ‘jurisdiction’ etc are of little solace and/ or legal interest to any of and/or all of the participants.
14. In the light of the all above, we do not see any merit in the present complaint and thus ORDER its dismissal with no orders as to its costs.
15. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
May 19, 2015. Member
*MK*
