DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 711 of 20-10-2014

Decided on : 27-04-2016

Veer Pal Kaur alias Navdeep Kaur, aged about 29 years, W/o Sh. Sukhjeet Singh, R/o VPO Killian Wali, Tehsil Abohar, District Ferozepur.

….....Complainant

Versus

Jindal Heart Institute & Infertility Centre, Power House Road, Bathinda, through Dr. Rajni Jindal

Tata AIR General Insurance Company Limited, Regd. Office : Penisula Business Park, Tower A, 15th Floor, Ganpatrao Kadam Marg, Lower Parel, Mumbai through its Managing Director/Manager/Authorized Signatory

........Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh Pahwa President

Smt. Sukhwinder Kaur Member

Sh. Jarnail Singh Member

Present :

For the Complainant : Sh. Kuldeep Singla, Advocate

For the opposite parties : Sh. Naresh Garg, counsel for OP No.1

Sh. Sahil Bansal, counsel for OP No. 2.

O R D E R

M. P. Singh Pahwa

This complaint has been filed by Veerpal Kaur, complainant against Jindal Heart Institute & Infertility Centre and another (opposite parties) under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act').

Briefly stated, the case of the complainant is that the agent/representative of opposite party No. 2 approached the complainant to purchase their Medi-claim Insurance policy and allured her that the said policy is cashless. In case the complainant suffers any illness, the opposite party No. 2 provides cashless treatment to its customers/patients free of cost through hospitals. Believing assurance of agent/representative of opposite party No. 2, the complainant agreed to purchase the said cashless insurance policy and accordingly, obtained cashless Medi-claim Insurance policy of opposite party No. 2 on 28-5-2014 for herself for a sum insured of Rs. 3,00,000/- and paid requisite amount of Rs. 3831/- for the same to opposite party No. 2 as premium. The opposite party No. 2 issued policy schedule bearing policy No. 0200177916 01 firstly w.e.f. 28-5-2013 to 27-5-2014 bearing ID No. ZZZZ359601301028 and thereafter complainant got renewed the said policy effective from 28-5-2014 to 27-5-2015 but the opposite party No. 2 never issued any terms and conditions of the said policy, rather issued only policy schedule to the complainant.

It is pleaded that in the month of April, 2012, the complainant was pregnant. Accordingly, she alongwith her husband consulted the concerned doctor at Abohar. The concerned doctor advised the complainant to get some tests/ultrasound conducted from the laboratory. Accordingly, the complainant got done the same. From the reports, the concerned doctor found that there was no proper growth of the baby as there is some bulky uterus with multiple fibroids, due to which the complainant had to get her baby aborted. The concerned doctor suggested the complainant that the same can be diagnosed properly only after various tests, failing which there was possibility of the baby getting aborted. Considering the matter to be serious, the complainant consulted opposite party No. 1 who claimed herself to be expert with super speciality qualifications and super speciality infrastructure for such like cases. On checking the report of the complainant, opposite party No. 1 conveyed the complainant that she will have to get removed fibroids from her uterus and only there after it is possible that she can take chance for pregnancy. The opposite party No. 1 further informed that fibroids will have got removed through surgery which shall be performed by opposite party No. 1. Believing the assurance of opposite party No. 1, the complainant decided to get herself operated upon from opposite party No. 1 for which she got herself admitted in the hospital of opposite party No. 1. At the time of admission, the complainant had shown her said insurance policy to opposite party No. 1 and got it confirmed from opposite party No. 1 who conveyed the complainant that her treatment shall be done free of cost as per said cashless insurance policy. Only after admitting the same, the complainant got herself admitted for surgery on 9-9-2014. Accordingly, opposite party No. 1 sent medi-claim of the complainant to opposite party No. 2 and opposite party No. 2 sent message to the complainant regarding her claim. Thereafter, opposite party No. 1 started surgery upon the complainant. The complainant remained admitted in the hospital of opposite party No. 1 w.e.f. 9-9-2014 to 12-9-2014 and on 12-9-2014, the complainant was discharged and assured that fibroids have been removed from the body of the complainant but at the same time, the opposite party demanded Rs. 50,000/- from the complainant on the pretext that opposite party No. 2 has rejected her claim. The complainant requested opposite party No. 1 not to charge any amount from her as per said insurance policy. If opposite party No. 2 rejected the claim, the complainant is not liable for the same. The opposite party No. 1 should get reimbursed their amount from opposite party No. 2 itself but opposite party No. 1 did not listen to her requests. Since opposite party No. 1 did not allow the complainant to leave the hospital without making payment of Rs. 50,000/-, as such under compelled circumstances, she had to pay Rs. 50,000/- to opposite party No. 1, but opposite party No. 1 did not issue any receipt in this regard. It clearly shows that firstly the opposite party No. 1 has wrongly and illegally charged Rs. 50,000/- from the complainant and secondly the opposite party No. 2 illegally rejected her claim for which she is entitled to get refund of the amount of Rs. 50,000/- from the opposite parties. The complainant also contacted opposite party No. 2 telephonically and requested it to pay her lawful claim amount but to no effect.

It is alleged that after sometime, the complainant again got her ultrasound conducted from Siddharath Ultrasound & Colour Doppler Scan Centre, Abohar ( here-in-after referred to as “ Siddharath ultrasound”) on 25-10-2014. The complainant was surprised to see that despite having got operated from opposite party No. 1, hypoechoic mass is present in the posterior wall of uterus of size 28x21x39 mm. The complainant again approached opposite party No. 1 and showed the said report to opposite party No. 1, but opposite party No. 1 failed to give proper reply to the complainant and simply suggested her to get surgery conducted again from opposite party No. 1.

On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of the opposite parties. She has claimed Rs. 10,00,000/- on account of mental tension, agony, botheration, financial loss and Rs. 11,000/- on account of litigation expenses. The complainant has also claimed refund of Rs. 50,000/- illegally charged by opposite party No. 1, alongwith interest @ 12% P.A.

Upon notice, the opposite parties appeared through their respective counsel and contested the complaint by filing separate written versions.

The opposite party No. 1 in its written reply raised legal objections that complainant is not consumer as she has not paid a single penny to opposite party No. 1 for her treatment. It is further mentioned that Rs. 500/- was paid by her as her tissue (Rasoli) after operation was sent to Dr. Deepali Path Labs and Cancer Diagnostic Centre, Bathinda (here-in-after referred to as “Deepali Path Labs”) for further investigation. The charge of Rs. 500/- duly sent to Dr. Deepali Path Labs and the same has been mentioned on the receipt dated 9-9-2014. That the complaint is liable to be dismissed as the complainant is playing fraud. She has not disclosed the facts and has suppressed the facts and has given wrong information. She has not paid any amount of Rs. 50,000/- to opposite party No. 1 as alleged in paras No. 7 & 8. She has given wrong address with opposite party No. 1. It is further added that opposite party No. 1 issued registered legal notice dated 17-10-2014 to the complainant. It demanded bill amount of Rs. 53,882/- but said registered notice of Veer Pal Kaur complainant returned back as no address and opposite party No. 2 replied to opposite party No. 1 that in the insurance policy there was specified waiting period of two years for the ailment of Veer Pal Kaur and the same has not been covered. In this way neither Veer Pal Kaur, complainant paid any amount nor Insurance Company (opposite party No. 2) paid any amount. The opposite party No. 1 reserved the right to claim the amount of Rs. 53,882/- from Veer Pal Kaur, complainant and opposite party No. 2 under law in appropriate court. That complaint is liable to be dismissed with special cost as Veer Pal Kaur is mentally harassing opposite party No. 1 without any reason. She is playing fraud with opposite party No. 1 as her ailment was not covered under the policy for first two years. She neither paid the bills of Rs. 53,882/- nor her Insurance Company accepted the claim and now the complainant filed this complaint by mis-stating the facts, as such, complaint is liable to be dismissed with special cost. That complaint has not been supported with any affidavit, as such it is liable to be dismissed. That complaint is liable to be dismissed as no expert opinion has been produced by the complainant alongwith this complaint whereas the same is mandatory as per law settled by Apex Courts.

On merits, the opposite party No. 1 has denied the averments of the complainant regarding her permanent place of residence. It is further added that opposite party No. 1 issued notice to complainant but the registered notice dated 17-10-2014 was returned back as no address. The opposite party No. 1 controverted all the material averments relating to it.

It is the case of opposite party No. 1 that as per record provided by the complainant of Dr. Sarla Sethi, the fibroids (Rasoli) was large and multiple and the size of her uterus (womb) was 4 to 6 weeks bigger than the duration of pregnancy. The complainant used to have pain in lower belly (Abdomen) for which she was taking medicine Tab 'Duvadilan' three tabs in a day from Dr. Sarla Sethi from Abohar. The complainant firstly visited opposite party No. 1 on 25-3-2014 with the complaint of pain, heaviness and fullness in lower Belly (Abdomen) area. She had a history of pregnancy loss in 2012 at 4-1/2 months. During her pregnancy, she also used to have pain in her lower belly. Her womb used to be bigger than the duration of her pregnancy. The complainant and her husband did not have any children. They wanted children in future. The complainant came with opposite party No. 1 with two ultrasound reports dated 30-9-2013 and 23-1-2014. After examining those ultrasound report, the opposite party No. 1 duly mentioned the size of big 2 fibroids (Rasoli) in the prescription on 1st visit as per ultrasound report i.e. 2 fibroids (Rasoli) of 74 x 66 mm and 32 x 32 mm (Approx.). The opposite party No. 1 on 25-3-2014 duly examined the complainant clinically and observation duly mentioned in the prescription dated 25-3-2014 that there was irregularly enlarged uterus about 18 weeks size due to multiple fibroids (Rasoli), Although the complainant was not pregnant at that time but due to big fibroids (Rasoli) her uterus (Womb) was enlarged like 18 weeks pregnancy. Due to this ailment, the complainant was advised myomectomy (surgery on the uterus/womb wall by cutting to take out the fibroids/Rasoli and later stitching the cuts back to save the Uterus/Womb for future pregnancy). Thereafter the complainant never returned back with opposite party No. 1 and second time she visited on 20-8-2014.

It is further pleaded that complainant was never assured by opposite party No. 1 for any kind of treatment. She was only advised myomectomy and she turned back after 5 months from 1st visit on 25-3-2014 and 2nd time visited on 20-8-2014 in the OPD. She was again advised for laparotomy myomectomy postmenstrual (open surgery of the Womb/Uterus after periods gets finished). The complainant was not admitted on that day. The complainant was having difficulty in passing urine and acute pain in belly. She came with opposite party No. 1 in emergency on 9-9-2014 in the evening. She was operated in emergency on same day. After surgery, the husband of the complainant produced the insurance of opposite party No. 2 and opposite party No. 1 immediately lodged claim with opposite party No. 2 on behalf of complainant under cashless insurance scheme. However, the complainant was discharged on 12-09-2014 and opposite party No. 2 denied the cashless insurance on 13-09-2014 after discharge of the complainant. As such, opposite party No. 1 neither took payment from the complainant nor the insurance company paid the amount. The complainant was operated in emergency on 9-9-2014 with hysteroscopy (Examination of Uterus/Womb with the help of telescope from inside) and found that her uterus/Womb was enlarged and distorted and the length of her uterine cavity was larger than normal (12 cm ordinarily 7 to 8 cm) and also found a bulge. There was also a bulge in her uterine cavity on left of posterior side which appeared to be due to fibroids (Rasoli). This gave an idea that her posterior fibroids (Rasoli) were very big and not only extended throughout the wall of her womb but bulged into the cavity on inner side and towards her upper abdomen (Belly) on outer side. There were no other fibroids (Rasoli) inside her cavity at that time. Such type of big fibroids (Rasoli) cannot be removed by hysteroscopy alone. As such, open surgery i.e. laparotomy myomectomy was done at the same time. After opening the belly, the opposite party No. 1 saw three fibroids (Rasoli) one in front of uterus/womb bulging 30x30 mm, 2nd on top of uterus/womb bulging 50x50 mm and 3rd bulging through posterior wall 140x120x100 mm running from top to bottom of uterus/womb posterior. All the three were removed completely by giving 3 cuts on her womb/uterus. The cuts were later stitched back. There were no other fibroids (Rasoli) visible or felt in her womb at that time. These fibroids (Rasoli) were sent for pathological examination to pathologist Dr. Deepali. Thereafter complainant was kept an close monitoring by daily blood tests to check her hemoglobin and blood. On 11-9-2014 detailed examination was done to check for any abnormality or bleeding from the uterus/womb. On confirming that everything was alright and after the complainant was able to walk on her own, tolerate oral feeds and had cleared her bowel, she was discharged from the hospital on 12-9-2014 with an advice to come for follow up on 17-9-2014. After 12-9-2014, the complainant never came to the hospital for any follow up.

It is further pleaded that during admission, the claim was lodged with opposite party No. 2 and telephonically the office bearer of opposite party No. 2 informed that claim is under process and will be cleared shortly. The opposite party No. 2 also told to opposite party No. 1 to submit discharge summary and medical bills. On the assurance of opposite party No.2, opposite party No. 1 discharged the complainant without taking any payment. The payment of amount of Rs. 50,000/- from the complainant is denied.

It is further mentioned that opposite party No. 2 denied the cashless insurance on 13-9-2014 after discharge of the complainant which was already done on 12-9-2014. It is reiterated that all the three fibroids (Rasoli) which were visible with naked eye were removed by open surgery by meticulous dissection. It was important to preserve uterine (womb) architecture because the complainant is issue less and was planning pregnancy in future. The opposite party No. 1 has also referred to some medical literature regarding Myomectomy.

As per opposite party No. 1, it had never charged any amount from the complainant. All the bills of Rs.53,882/-were duly submitted to the Insurance Company.

It is further pleaded that even for arguments sake if it is admitted that there is any hypothetical mass in the posterior wall of uterus/womb, there are multiple possibility which could explain such finding on ultrasound like post operative blood collections, scar tissue, seeding fibroids (Rasoli) which were not visible at the time of surgery and now has enlarged in size. It is further stated that after myomectomy, uterus/womb restructuring takes place and in that scenario some small fibroids (Rasoli) which were earlier invisible can become apparent. In ultrasound report dated 25-10-2014, it is very much clearly mentioned that uterus is in normal dimension and echo texture and endometerial is normal (uterus/womb has become normal from inside) which was earlier before surgery enlarged and distorted. On 9-9-2014, the complainant was operated in emergency and three cuts were given on the uterus/womb wall where the fibroids (Rasoli) was bulging maximally in order to preserve the rest of uterus/womb as the complainant was issueless. It is more important to save her uterus/womb firstly by removing big fibroids (Rasoli). These large and bulky fibroids (Rasoli) were letting the baby to grow normally and were reason for earlier pregnancy loss. Even if a small seedling fibroid (Rasoli) has re-grown or has become apparent because of uterine restructuring, it is not a hindrance to a further pregnancy since her endometrium (inner side of womb) is normal as reported in ultrasound done on 25-10-2014.

It is also asserted that after discharge on 12-9-2014, the complainant never turned back. The complainant never came back for mandatory follow up visit for stitch removal and further instructions and change of treatment, neither she came back for follow up. It is denied that there is any deficiency in service. It is reiterated that complainant neither paid single penny to opposite party No. 1 nor there is any question of mental agony, tension etc., In the end, the opposite party No. 1 prayed for dismissal of complaint.

The opposite party No. 2 in its separate written reply raised legal objections regarding maintainability and territorial jurisdiction. It is further pleaded that complainant has concealed material facts from this Forum. The complainant got admitted herself in Jindal Hospital on 9-9-2014 and request for cashless intimation was given to the TPA of the opposite parties by the hospital on 10-09-2014. On examination of the documents alongwith request, it was observed that complainant was diagnosed with multiple fibroids in the uterus. Since there was a specific waiting period of 2 years for the ailment as per the policy, the same was found beyond the scope of coverage. Hence, the cashless was denied vide letter dated 12-09-2014 as per terms of the policy. It is alleged that complainant has filed this false complaint against the opposite parties to sabotage their reputation. She is liable to be punished under Section 26 of the 'Act'.

On merits, the opposite party No. 2 has also controverted all the material averments mainly by stating that they are within the personal knowledge of the complainant. In the end, the opposite party No. 2 also prayed for dismissal of complaint.

Parties were afforded opportunity to produce evidence. In support of her claim, complainant has tendered into evidence photocopy of ultrasound report (Ex. C-1), photocopy of lab report (Ex. C-2 & Ex. C-3), photocopy of ultrasound film (Ex. C-4), photocopy of ultrasound report (Ex. C-5), photocopies of lab reports (Ex. C-6 to Ex. C-10), photocopy of ultrasound report (Ex. C-11), photocopy of ultrasound film (Ex. C-12), photocopy of payment receipt (Ex. C-13), photocopy of prescription (Ex. C-14), photocopy of discharge summary (Ex. C-15), photocopy of payment receipt (Ex. C-16), photocopy of health card (Ex. C-17), photocopy of letter (Ex. C-18), photocopies of prescriptions (Ex. C-19 to Ex. C-21), photocopy of ultrasound film (Ex. C-22), photocopy of payment receipt (Ex. C-23), photocopy of ultrasound report (Ex. C-24), photocopy of payment receipt (Ex. C-25), photocopy of prescription (Ex. C-26), affidavit of complainant dated 8-7-2015 (Ex. C-27) and affidavit dated 8-7-2015 of Sukhjeet Singh (Ex. C-28).

In order to rebut this evidence, opposite party No. 1 has tendered into evidence affidavit dated 23-12-2014 of Dr. Rajni Jindal (Ex. OP-1/1), photocopy of treatment file (Ex. OP-1/2), photocopy of denial of cashless service (Ex. OP-1/3), photocopy of legal notice and postal receipt (Ex. OP-1/4 and Ex. OP-1/5), photocopy of registered envelop (Ex. OP-1/6), photocopy of letter (Ex. OP-1/7), photocopy of bill (Ex. OP-1/8), photocopy of report (Ex. OP-1/9), affidavit dated 31-7-2015 of Dr. Rajni Jindal (Ex. OP-1/10), affidavit dated 21-7-2015 of Dr. Rupinder Kaur Rampal (Ex. OP-1/11), affidavit dated 31-7-2015 of Dr. Rupinder Singh (Ex. OP-1/12), affidavit dated 31-7-2015 of Dr. Amritpal Singh (Ex. OP-1/13), photocopy of ledger account (Ex. OP-1/14) and photocopies of receipts (Ex. OP-1/15 to Ex. OP-1/27).

The opposite party No. 2 has tendered into evidence photocopy of policy (Ex. OP-2/1).

The complainant and opposite party No. 1 also submitted written arguments.

We have heard learned counsel for the parties and gone through the record and written submissions of the complainant and opposite party No. 1.

The learned counsel for the complainant has reiterated his stand as taken in the complaint and detailed above. It is further submitted by learned counsel for the complainant that admittedly the complainant has obtained cash less medical claim policy of opposite party No. 2. The complainant got treatment from opposite party No. 1. The opposite party No. 2 has denied cash less treatment vide letter dated 13-09-2014. This act of the opposite part No.2 is against the terms and conditions. Moreover, the complainant was never supplied with the terms and conditions. Therefore, the terms and conditions are not binding upon the complainant . When the terms and conditions of opposite party No. 2 stands excluded ,the act of opposite party No. 2 regarding denial of cash less service amounts to deficiency in service and unfair trade practice. Admittedly, the opposite party No. 2 has neither reimbursed the complainant nor opposite party No. 1. Therefore, opposite party No. 2 is liable for payment to complainant.

Regarding alleged deficiency on the part of opposite party No. 1, the learned counsel for complainant has submitted that it is not disputed that complainant took treatment from opposite party No. 1 since 25-3-2014. Ex. C-14 is the prescription slip issued by opposite party No. 1 on 25-3-2014. The complainant also took treatment from opposite party No. 1 on different dates. Ultimately on 9-9-2014, complainant was admitted in the hospital of opposite party No. 1. Although the opposite party No. 1 has alleged that complainant got admitted herself in emergency but there is nothing to show that there was any emergency for the complainant for admission. The documentary evidence on record will prove that complainant was not admitted as an emergency case. Ex. C-7 is the Lab report which is on the letter head of opposite party No. 1. This fact shows that test was conducted on 8-9-2014 and report was prepared at 22.38 on 8-9-2014. The report Ex. C-8 is also dated 8-9-2014. It is also on the letter head of opposite party No. 1 hospital and the patient was referred by opposite party No. 1. Therefore this treatment record proves that on 8-9-2014, the complainant was under the treatment of opposite party No. 1. In such circumstances, contention of opposite party No. 1 that complainant was admitted as emergency case pales into insignificance. The opposite party No. 1 has pleaded in its written statement that complainant was operated on 9-9-2014 and the operation was by way of surgery. It is also specifically mentioned that there were no other fibroids (Rasoli) inside her cavity at that time i.e. after surgery. It is also the case of opposite party No. 1 that there were three fibroids (Rasoli) one in front of uterus/womb bulging 30x30 mm, 2nd on top of uterus/womb bulging 50x50 mm and 3rd bulging through posterior wall 140x120x100 mm running from top to bottom of uterus/womb posterior. It is categorically asserted that all the three fibroids (Rasoli) were removed completely. Therefore, if this contention of opposite party No. 1 is accepted true, the only conclusion is that after surgery there was no fibroid (Rasoli) in the womb of the complainant as all the three fibroids (Rasoli) were removed. The complainant was discharged on 12-9-2014. The opposite party No. 1 has not got ultrasound or other tests after operation to ensure that all the fibroids (Rasoli) have been removed from the womb of the complainant. The opposite party No. 1 has also not got any ultrasound or MRI before starting surgery because MRI and sonohysterography could have helped to identify the fibroids (Rasoli). The complainant got examined herself from the doctor of Dr. Nagpal's Fertility & Test Tube Baby Centre vide prescription slip Ex. C-19 and TVS (Cyst) was reported. The complainant was again advised to get treatment from the same doctor. The complainant got conducted ultrasound from the hospital of Dr. Nagpal's Fertility & Test Tube Baby Centre on 18-09-2014 vide prescription slip Ex. C-20 and as per this report, TVS (cyst) was observed. Therefore in case the opposite party No. 1 was successful in removing all the fibroids from the uterus of the complainant, then there was no question of another cyst on 18-09-2014 i.e. just after one week from the surgery. This fact itself proves that opposite party No. 1 has not removed all the fibroids and has illegally claimed removal of all the fibroids. The complainant has also got examined from Khurana Nursing Home on 3-11-2014 vide prescription slip Ex. C-16. As per this report also, SIV fibroid was seen in post wall of uterus and its size was 28x21x39 mm. Therefore it is also not believable that fibroid of such large size will develop within less than two months after surgery. The only conclusion can be drawn that opposite party No. 1 has not completely removed fibroid from the womb of complainant and has falsely claimed that all the visible fibroids have been removed. It amounts to medical negligence and unfair trade practice on the part of opposite party No. 1.

This Forum can take judicial notice of the fact that complainant was of the age of 29 years at the time of surgery. She was not having any issue. It is not possible to undergo surgery again and again and repeated surgeries decreases the chance of pregnancy. Therefore, the entire future of the complainant stands destroyed by the negligent act of opposite party No. 1. The complainant has claimed reasonable amount of compensation i.e. Rs. 10.00 Lacs only which is quite justified.

It is further submitted by learned counsel for the complainant that the contention of opposite party No. 1 that it had not charged any amount from the complainant is totally unbelievable. The opposite party No. 1 has admitted bill of Rs. 53,882/-. Of course the opposite party No. 1 has not issued any receipt but still it is not not believable that opposite party No. 1 will let the patient go without charging any fee. The opposite party No. 1 cannot take advantage of its own fault of not issuing receipt. Moreover no other record has been produced by opposite party No. 1 to prove that nothing was charged from the complainant. The opposite party No. 1 in paragraph No. 7 of written version has pleaded that after surgery husband of the complainant produced insurance of opposite party No. 2 and opposite party No. 1 immediately lodged the claim with opposite party No. 2. If this version of opposite party No. 1 is accepted true, then it is highly unbelievable that opposite party No. 1 would have started surgery without getting deposited any part of the fee. This fact also belies the averment of opposite party No. 1. As the opposite party No. 1 has charged Rs. 50,000/- from the complainant despite the fact that complainant was having medi-claim insurance policy. The opposite party No. 1 is liable to refund this amount otherwise opposite party No. 2 be directed to reimburse the complainant.

In support of his submissions, learned counsel for the complainant has also cited 2011 (3) CPJ 383 case titled Anita (Dr) Vs. Rajashree

On the other hand, learned counsel for opposite party No. 1 has reiterated his stand as taken in the written reply and detailed above. It is further submitted by learned counsel for opposite party No. 1 that the complaint has been filed only to defeat the rightful claim of opposite party No. 1. The complainant has not paid any charges to opposite party No. 1. The opposite party No. 1 has already got issued legal notice to the complainant. Of course notice was received back undelivered for want of correct address but the complaint has been filed only to escape the liability of complainant on account of fee of opposite party No. 1. The complainant was to firstly allege medical negligence and then to prove the same but the complainant has failed on both the counts. Of course it is not disputed that opposite party No. 1 performed operation of the complainant on 9-9-2014. The complainant was operated on 9-9-2014 in the evening being emergency case and she was discharged on 12-09-2014 in satisfactory condition. On 9-9-2014, the complainant was operated in emergency with hysteroscopy (examination of uterus/womb with the help of telescope from inside). There was a bulge in her uterine cavity on left of posterior side. It appeared to be due to the fibroids (Rasoli). It gave idea that her posterior fibroids (Rasoli) were very big and not only extended throughout the wall of her womb but bulged into the cavity on inner side and towards her upper abdomen (Belly) on outer side. There was no other fibroids (Rasoli) inside her cavity at that time. Such type of big fibroids (Rasoli) cannot be removed by hysteroscopy alone, so open surgery i.e. laparotomy myomectomy was done at the same time. 3 fibroids (Rasoli) were found. one in front of uterus/womb bulging 30x30 mm, 2nd on top of uterus/womb bulging 50x50 mm and 3rd bulging through posterior wall 140x120x100 mm running from top to bottom of uterus/womb posterior. All the three fibroids (Rasoli) were removed completely by giving 3 cuts on her womb/uterus, which were later on stitched back. There were no other fibroids (Rasoli) visible or felt in her womb at that time.

It is further submitted by learned counsel for opposite party No. 1 that although the complainant has brought on record subsequent report to prove that there was still fibroid (Rasoli) but the subsequent reports are not conclusive evidence to prove the case of the complainant. If there is any hypoecholic mass in the posterior wall of uterus/womb, there are multiple possibilities which could explain such findings on ultrasound like post operative blood collection, scar tissue, seeding fibroids (Rasoli), which were not visible at the time of surgery and might have enlarged later on. Moreover, after myomectomy uterus/womb restructuring takes place and in that scenario some small fibroids (Rasoli) which were earlier invisible can become apparent. Apart from this fact, in ultrasound report dated 25-10-2014 (after surgery), it is clearly mentioned that uterus is in normal dimension and echo textures and endometrial is normal (uterus/womb has become normal from inside) which was earlier before surgery enlarged and distorted. It was more important to save her uterus/womb first by removing big fibroids (Rasoli), these large and bulky fibroid (Rasoli) were not letting the baby grow normally and were reason for earlier pregnancy loss. Even if a small seedling fibroid (Rasoli) has re-grown or has become apparent because of uterine restructuring, it is not hindrance to a further pregnancy since her endometrium (inner side of womb) is normal as reported in ultersound done after surgery on 25-10-2014. Therefore, this evidence of opposite party No. 1 proves that no loss has been suffered by the complainant due to alleged negligence on the part of opposite party No. 1.

It is further submitted by learned counsel for opposite party No. 1 that on 25-3-2015 Dr. Nagpal after examining the patient and repeating her ultrasound found a hypo echoic mass measuring 22 mm on posterior wall and one fundal fibrod measuring 2 cm which is much smaller in size when compared to earlier scan done on 25-10-2014 at Abohar at Siddarth Ultra Sound Scan and Colour Doppler Scan Centre wherein the size was 28x21x39 mm. Had it been a fibroid, it would not have decreased to almost 50% on its own. The Fibroid diagnosed is hysto-pathological diagnosis and ultrasound can merely give an echoic shadow which can have varied differential diagnosis.

It is further submitted by learned counsel for Opposite party No. 1 that even otherwise no where on follow up visit of complainant, she has been advised for the need of repeat surgery (Myomectomy) to remove alleged fibroid as per ultrasound scan report. Rather complainant has been advised by Dr. Rupinder Kaur Nagpal on her consultation on 23-04-2015 to consider her TVS followed by O.I. Had the ultrasound findings been a hindrance for any future prospects of pregnancy, she would not be advised O.I, which in medical language is the Ist step to facilitate pregnancy. Therefore all the evidence proves that there was no negligence on the part of opposite party No. 1 and the complainant has not suffered due to any alleged negligence.

The learned counsel for opposite party No. 1 has also quoted the following books with reported observations :

(i) Berek & Novak Gynecology, 14th Edition Page No. 480

(ii) TE Linde's Operative Gynecology, 18th Edition, Page No. 765

(iii) Reconstructive & Reproductive surgery in Gynecology (2011) Page No. 218.

The learned counsel for opposite party No. 2 has submitted that opposite party No. 2 has been unnecessarily dragged into litigation. Of course the complainant has got medi-claim insurance policy of opposite party No. 2, the copy of policy is proved on record as Ex. OP-2/1. It contains 'Exclusions' mentioned in Section 3 and myomectomy for fibroids is excluded for a waiting period of two years. The policy was obtained on 28-5-2014. The operation was got conducted on 9-9-2014 which is within two years. Therefore, the complainant is not entitled to any reimbursement on account of this surgery.

We have carefully gone through the record and have considered the rival contentions.

There is no dispute to the legal proposition that in order to prove medical negligence, the complainant has firstly to allege negligence and then to prove it by supporting evidence. The case of the complainant is very simple. The complainant has pleaded that she wanted pregnancy and consulted doctor at Abohar. On the advise of doctor, the complainant got ultrasound test conducted from laboratory and it was found that there was bulky uterus with multiple fibroids due to which the complainant had to get her baby aborted. The opposite party No. 1 has admitted in written reply that complainant herself admitted that there was bulky uterus (womb) at that time with multiple fibroids (Rasoli) due to which baby was not growing properly. Therefore, it is not disputed by opposite party No. 1 also that there were multiple fibroids (Rasoli). It is also not disputed that due to these Fibroids (Rasoli), the baby was not growing properly and the complainant has to get baby aborted. It is also not disputed by opposite party No. 1 that complainant produced ultrasound report dated 30-9-2013 and 23-1-2014 and on the basis of which, opposite party No. 1 mentioned size of big 2 fibroids (Rasoli) 74x66 mm and 32x32 mm. It is also not disputed that complainant was operated upon on 9-9-2014 by opposite party No. 1. The purposes for operation was to get the fibroid (Rasoli) removed. Of course, opposite party No. 1 has pleaded that complainant was operated being the case of emergency but this averment of opposite party No. 1 is not corroborated by other documentary evidence. The complainant has brought on record laboratory reports dated 8-9-2014 (Ex. C-7 and Ex. C-8). Ex. C-7 is the report of Amrit Path Lab and this Laboratory is situated in the premises of hospital of opposite party No. 1. Report Ex. C-8 is also of the Laboratory situated in the premises of hospital of opposite party No. 1. Therefore, both these reports are based on referral by opposite party No. 1. Both these reports prove that complainant was under the treatment of opposite party No. 1 on 8-9-12014 also. As such, it cannot be concluded that operation was performed as emergency case.

From the stand taken by opposite party No.1, it is clear that as per opposite party No. 1 all the Fibroids (Rasoli) were removed by performing operation and operation was also laparotomy myomectomy i.e. open surgery. It is clear cut case of opposite party No. 1 that there was no other Fibroid (Rasoli) inside the cavity of complainant and all the three Fibroids, which were visible with naked eye, were removed by open surgery by meticulous dissection. The categorical stand of opposite party No. 1 is that after surgery no fibroid remained there but opposite party No. 1 has not got conducted any ultrasound after performing surgery to confirm about Fibroid (Rasoli) after surgery. On the other hand, the complainant has produced on record four different ultrasound reports of different doctors. Ex. C-11 is the ultrasound report dated 25-10-2014 i.e. after about 1-1/2 months from the operation. As per this report hypoechoic mass in the posterior wall of uterus of size 28x21x39 mm was found. Of course in this report the uterus is reported as normal in distension and echo-texture but the presence of hypoechoic mass is also reported in this report. Ex. C-19 is the ultrasound report dated 23-03-2015 from Dr. Nagpal. As per this report, one Cyst (Rasoli) was noticed. The report dated 18-9-2014 (Ex. C-20) is also from the hospital of Dr. Nagpal. As per this report also, one Cyst was reported. The ultrasound report dated 23-3-2015 of Nagpal Superspeciality Hospital is brought on record as Ex. C-24. As per this report also, the Fibroids uterus is reported. Therefore, all these reports of different doctors on different dates prove that Fibroid (Rasoli) were not completely removed.

The opposite party No. 1 has tendered into evidence affidavit of Dr. Rupinder Kaur Nagpal (Ex. OP-1/11), of course to prove that multiple huge and massive uterine fibro myoma found in complainant's uterus were not obstruction in the conception and rather got mentioned that uterus scan was much healthier and spacious and was conducive for further pregnancy. This affidavit tendered by opposite party No. 1 supports the averments of complainant that she got conducted ultrasound scan from Nagpal Hospital, Bathinda on 18-9-2014 and 16-10-2014 and both times Fibroid (Rasoli) were found present.

The submission of learned counsel for opposite party No. 1 that if there is any hypo echoic mass in the posterior wall of uterus/womb, this can be due to post operative blood collection, scar tissue, seedling fibroids (Rasoli), is without any substance. The ultrasound reports corroborated with the affidavit of Dr. Rupinder Kaur Nagpal prove that Fibroids (Rasoli) were found on ultrasound conducted after operation by opposite party No. 1 and there is nothing that this was due to blood collection ,or on account of scar tissue, seedling fibroids (Rasoli) etc., Therefore, this contention of learned counsel for opposite party No. 1 is based on hypothesis only and not on any medical evidence.

The contention of learned counsel for opposite party No. 1 that no loss has been suffered by complainant due to Fibroids is also without any help to opposite party No. 1. When the categorical stand of opposite party No. 1 that all the Fibroids (Rasoli) visible with naked eye were removed, then question of any loss/injury to the complainant for negligence of opposite party No. 1 is immaterial. The question before this Forum is whether the operation performed by opposite party No. 1 was successful or whether opposite party No. 1 was negligent in performing operation. When the opposite party No. 1 has failed to remove all the Fibroids (Rasoli), the only conclusion is that opposite party No. 1 was negligent and operation conducted upon complainant was unsuccessful. In these circumstances, negligence of opposite party No. 1 stands fully proved.

As per complainant, opposite party No. 1 has charged Rs. 50,000/- for the operation which was not successful. The opposite party No. 1 has denied receipt of any charges and main contention of opposite party No. 1 is that complainant has not produced any receipt to prove payment of amount. The issuance of receipt in token of payment of any fee is the function of opposite party No. 1. If opposite party No. 1 has not issued any receipt, it cannot take benefit of its own default. Moreover, there can be other reason for non-issuance of receipt. The complainant was having medi claim policy and opposite party No. 1 has already lodged claim with opposite party No. 2, although by the time operation was performed, opposite party No. 2 has not made payment but opposite party No. 1 may be expecting payment from opposite party No. 2 being insurer of the complainant. It can be the reason for non-issuance of receipt. Otherwise, opposite party No. 1 was having no reason to treat the complainant without any charges or to discharge her without receiving these charges. Moreover, there is no other record produced by opposite party No. 1 to prove that they have not charged any amount. The legal notice issued by opposite party No. 1 to the complainant cannot be held proof of non-payment of fee.

As the opposite party No. 1 was negligent in performing operation, as such, it was also having no right to charge the amount and amount if any charged, is liable to be refunded back.

Although the complainant has been compensated from opposite party No. 1 and this compensation includes the charges, if any paid by complainant to opposite party No. 1. Since the complainant has also claimed refund of Rs. 50,000/- from opposite party No.2 on the basis of Medi-claim policy, therefore, this aspect of the complaint is also required to be examined. The claim of the complainant is based on insurance policy, copy of which brought on record by opposite party No. 2 as Ex. OP-2/1. Admittedly, as per complainant she has obtained the policy effective from 28-5-2013 to 27-5-2014 and then 28-05-2014 to 27-05-2015. The operation was got performed on 9-9-2014, which is within two years from first policy commencing from 28-05-2013. Section 3 of the policy contains 'Exclusions' which includes myomectomy for fibroids for waiting period of two years from the start of policy. Therefore, this claim is excluded by virtue of Section 3 of the policy. As such, the complainant is not entitled to any relief against opposite party No. 2.

For the reasons recorded above, this complaint is partly accepted with costs of Rs. 5,000/- against opposite party No.1. Complaint qua opposite party No. 2 stands dismissed. The opposite party No. 1 is directed to pay Rs. 5,00,000/- as compensation on all counts to the complainant. This amount also includes the charges, if any, received by opposite party No. 1 from complainant for treatment.

The compliance of this order be made within 45 days from the date of receipt of copy of this order failing which the amount of Rs. 5,00,000/- would carry interest @ 12% p.a. till realization.

The complaint could not be decided within the statutory period due to heavy pendency of cases.

Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

Announced :

27-04-2016

(M.P.Singh Pahwa )

President

(Sukhwinder Kaur)

Member

(Jarnail Singh )

Member