Punjab

StateCommission

A/181/2015

Rajwant Kaur - Complainant(s)

Versus

Jiwan Nursing Home - Opp.Party(s)

P.S.Sobti

17 Feb 2017

ORDER

 

                                                               FIRST ADDITIONAL BENCH

 

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.181 of 2015

 

                                                          Date of Institution: 13.02.2015

                                                          Order Reserved on: 15.02.2017

                                                          Date of Decision:   17.02.2017

 

 

Mrs. Rajwant Kaur wife of Sh. Harvinder Singh, r/o Near Ruldu Ram & Sons, Opposite Horliks Factory, Nabha (Pb).

 

 

                                                                    Appellant/Complainant          

         Versus

 

1.      Jiwan Nursing Home, Dojian Street (Indoor), near Arya Samaj  Chowk (Nabha Clinic), Nabha Dojian Street, Nabha, District         Patiala, through its authorized signatory.

 

2.      Dr. Sunit Garg, Jiwan Nursing Home, Dojian Street (Indoor), near Arya Samaj Chowk (Nabha Clinic), Nabha Doijan Street, Nabha, District Patiala.

 

3.      Ashok Clinical Laboratory, Bank Colony, Patiala, through its  Authorized Signatory Dr. Ashok Gupta.

 

4.      National Insurance Company Ltd, SCO 332-334, Sector 34-A,  Chandigarh, through its Manager.

 

 

                                                               Respondents/Opposite parties

 

First Appeal against order dated 08.01.2015 passed by the District Consumer Disputes Redressal Forum,  Patiala.

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Shri.J.S Gill, Member

 

Present:-

          For appellant                        : Sh.H.S Parwara, Advocate

          For respondents no.1-3        : Sh.A.K Batra, Advocate

          For respondent no.4             : Sh.B.S Taunque, Advocate

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant directed this appeal against order dated 08.01.2015 of District Forum Patiala, dismissing her complaint. The appellant of this appeal is the complainant in the original complaint before District Forum Patiala and respondents of this appeal are opposite parties therein and they be referred as such hereinafter for the sake of convenience.

2.      The complainant has filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that she was admitted in Jiwan Nursing Home with severe bleeding and OPs no.1 and 2 issued certificate regarding her treatment on 30.08.2012. As per advice of OPs no.1 and 2, she got conducted a clinic test from OP no.3 on 11.08.2012, reference      no. 3260/12 from Ashok Clinical Laboratory Patiala. OP no.3 supplied test report to her to this effect:-

ENDOMETRIAL BIOPSY

Gross: - Multiple dark brown soft tissue pieces together

Measuring 2.5 cm in diameter

Microscopic: - shows Trophoblastic tissue

Suggestive of products of conception

No evidence of malignancy is seen.

The OPs without any further investigation and without any ultrasound report did DNC (Dialation and Currettage) on 08.08.2012 on the basis of report supplied by OP no.3. The health of complainant has not improved after DNC and rather it produced more complications. OP nos.1 and2 repeated DNC due to excessive bleeding, which fact is clear from the certificate issued by OPs no.1 and 2. The complainant was referred to PGI Chandigarh for further treatment, where she was checked up by the panel of doctors of PGI Chandigarh. Further tests were conducted by the Department of Cytology & Gynaecologic Pathology at PGI Chandigarh and report was supplied on 11.09.2012, vide G.No. 004035/2012 CR No. 3623214. The report is reproduced below :-

Gross :

Received 1 stained slide and 2 blocks numbered 3260/12 for review.

Micro :

Review slides show a tumour composed of cytotrophoblasts surrounded by syncytiotrophoblast alongwith occasional mitosis, large areas of necrosis and few myometrial fragments. No villous structure identified.

Features are of a Choriocarcinoma.

Diagnosis:

Edowmetrium (Biopsy) (Slides for Review)     : Choriocarcinoma

 

                                                                             Sd/-

                                                                             (RM/DG/A Rajwanshi)

                                                                             M.D FRPath

 

The test conducted by OP no.3 as suggested by OP no.2 was not properly carried out, which resulted into conducting of D&C test by OP no.2 on the complainant. Two times D&C was done on complainant in a short span, which was not required during such a short period. Due to  conducting two times D&C by OPs, the tumour spread in the uterus of the complainant. The OPs should have got conducted detailed investigations, such as ultra sound, city scan for the purpose of proper diagnosis and treatment. In such circumstances, instead of doing two times DNC, they should have removed the uterus to avoid further complications, but it was not done, resulting into further problem to complainant. The complainant served legal notice to OPs on 06.12.2012 through counsel Sh. Sanjeev Abrol Advocate for medical negligence on their part. OP no.2 filed reply to legal notice through her counsel, which is based on incorrect facts. The complainant is still under treatment for above tumor from PGI Chandigarh and humongous amount has been spent by complainant on her treatment. The complainant has, thus, filed complaint directing the OPs to pay Rs.5 lac as compensation for medical negligence and Rs.5 lac as damages to her. The complainant suffered mental harassment at the hands of Ops due to deficient service, medical neglgience and unfair trade practice by them. The complainant has further prayed that OPs be directed to pay Rs.11,000/- as costs of litigation.

3.      Upon notice, OPs no.1 and 2 appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred in it that complainant complained to Health Minister Government of Punjab and the Health Minister has assigned an enquiry board of medical experts in the field of gynecology constituted by the Civil Surgeon Patiala with District Family Planning Officer as head and two experts as members. The Medical Board recorded the statements of the complainant and OP no.2 and gave report that patient Rajwant Kaur was given appropriate medical treatment and was referred to PGI Chandigarh in time for further management by Dr. Sunita Garg OP no.2 after giving proper treatment. No negligence of any kind was seen at the level of         Dr. Sunita Garg/OP no.2 in this regard in it. The complaint is alleged to be misconceived being groundless and frivolous. No cause of action accrued to complainant to file the present complaint. The complaint is alleged to be bad for non-joinder and mis-joinder of necessary parties. OP no.2 Dr. Sunita Garg is a Senior Gynecologist and reputed medical practitioner. She has been practicing as a Gynecologist for the last 35 years. It was further averred in the reply that patient Rajwant Kaur had approached the OPs on 11.08.2012 with a complaint of excessive or abnormal bleeding per vagina and she had a baby by LSCS at PGI Chandigarh about 8 months back. She orally informed the OPs that she has undergone sterilization operation i.e. bilateral tubectomy operation at PGI Chandigarh, but the same fact was not confirmed from papers of PGI. Since from the said operation i.e. 8 months earlier, she had excessive irregular bleeding per vagina for which she was getting the treatment from some other doctor.  On her examination by OP no.2, the patient was found having excessive and abnormal vaginal bleeding.  The patient was explained about the probable causes of abnormal excessive bleeding like incomplete abortion (POC), DUB (haromonal) or some tumor or cancer etc. To stop severe bleeding, D&C was the established treatment in this regard it was suggested and duly explained to patient. The patient agreed for the same and she was given IV fluid, drugs and D&C procedure was done. After D&C procedure on complainant,  the bleeding had stopped. This was a specialized test done by pathologist doctor only. A requisition slip duly filled in with the suspected diagnosis and name of the test to be got done was given to the husband of the complainant with the tissue. The processing of tissue and preparation of test report usually takes approximately 3 days. It was further averred that patient felt comfortable and went home immediately. The treatment slip was given and patient advised the treatment for 5 days and was asked to to come on for further follow up after taking treatment for 5 days with histology report. After going to home, the patient had not taken any medicine as prescribed by OP no.2. Neither she followed the treatment up nor did she turn up for follow up treatment. The patient had come on 30.08.2012 again with severe bleeding P/V. The patient showed the histology report got done from OP No.3/Ashok Clinical Laboratory Patiala dated 11.08.2012, which showed "Trophoblastic Tissue", 'suggestive of products of conception, no evidence of malignancy was seen. The said report was prepared from the tissue taken out of D&C done on 11.08.2012. The patient showed treatment slips of some other doctor, from whom the patient was taking medicines and under whose advice the patient got her urine for pregnancy test done from  some lab on 26.08.2012 and it was found positive. The patient admitted that she had not followed the advice of OPs no.1 and 2 and she showed the PGI discharge card of bilateral tubectomy operation. OP no.2 found massive bleeding per vagina, with vagina full of blood and clots of the complainant. The immediate aim was to stop her bleeding. The patient needed resuscitation and immediate treatment for stoppage of bleeding. OP no.2 explained that since the bleeding was very profuse, there might be some other cause such as cancer or tumor and that patient should be shifted and managed in tertiary institute after resuscitation and stoppage of bleeding. D&C procedure was the only way to stop bleeding in emergency along with drugs. The complainant agreed for the same and OPs no.1 and 2 did D&C along with drugs, injections and I/V fluids and the bleeding had stopped thereby. It was further averred that D&C was the treatment for "Trophoblastic tissue, suggestive of products of conception, no evidence of malignancy seen.". OP no.2 had suspicion that patient was either a case of choriocarcinoma or the molar pregnancy and histology report might be erroneous. The OPs had doubt about the report, they preserved  the tissue taken out of D&C second time for second opinion, which was not a routine type and further handed it over to the husband of the complainant for getting the same tested from some other institution i.e. PGI Chandigarh. Since her bleeding had stopped and Ops no.1 and 2 had a suspicion of cancer, they advised husband of the complainant to take her to PGI Chandigarh immediately and get the D&C tissue tested again thereat. A referral slip was prepared describing the treatment given to the patient handed over to husband of the complainant. The complaint was contested even on merits by OPs no.1 and 2. Any medical negligence on their part was vehemently denied and OPs no.1 and 2 prayed for dismissal of the complaint.

4.      OP no.3 filed its separate written reply and contested the complaint of the complainant. It was averred in preliminary objections that no cause of action has accrued to complainant to file the complaint against OPs. There is no lapse or deficiency in service on the part of it. The complainant is estopped by its act and conduct from filing the complaint. On merits, it was pleaded that complaint filed by the complainant is not correct and merits dismissal. The entitlement of complainant to any compensation was denied. Rest of the averments were denied by OP no.3 and it prayed for dismissal of the complaint.  

5.      The complainant tendered in evidence her affidavit Ex.C-A along with copies of documents Ex.C-2 to Ex.C-9.  As against it; OPs  no.1 and 2 tendered in evidence affidavit of Dr. Sunita Garg Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-20. On conclusion of evidence and arguments, the District Forum Patiala dismissed the complaint of the complainant by virtue of order dated 08.01.2015. Dissatisfied with the order of the District Forum Patiala dated 08.01.2015, the complainant now appellant, carried this appeal against the same.

6.      We have heard learned counsel for parties at considerable length and have also examined the record of the case.

7.      Firstly, we refer to evidence on the record to appreciate the controversy in this case. Affidavit of complainant is Ex.C-A on the record. The complainant has stated on oath that she was admitted with OP no.1 in August 2012 on account of severe bleeding. She was treated by OP no.1 and 2, vide certificate dated 30.08.2012. She further stated that, vide reference no. 3260/12, she got the test conducted from Ashok Clinical Laboratory, Patiala as OP no.3 and test report of Endometrial Biopsy was Gross : Multiple dark brown soft tissue pieces together measuring 2.5 cm in diameter. Microsocopic :- shows Trophoblastic tissue. Suggestive of products of conception. She has deposed in her testimony and without getting any ultrasound and CT Scan therefor. OPs have performed D&C procedure (Dilation and Curettage) on 08.08.2012 on her. Her condition did not improve and D&C procedure carried out by OPs no.1 and 2. She was referred to PGI, Chandigarh, where tests by the Department of Cytology & Gynaecologic Pathology PGI Chandigarh were conducted  and features were found to be of Choriocarcinoma by it. The OPs conducted D&C procedure twice on her within a short span of time, which was not required at all. Ops no.1 and 2 should have conducted detailed investigations such as ultrasound and CT Scan for purpose of proper diagnosis. She attributed medical negligence on performing D&C test twice in her without ultrasound report by OP no.2. She further deposed that she has been receiving the treatment for tumour from PGI Chandigarh and incurred the expenses thereon. Ex.C-1 is prescription slip issued by OPs no.1 and 2 on 30.08.2012. She was admitted with OPs no.1 and 2 with severe bleeding per vagina. Her LSCS was performed on 06.11.2011 at PGI Chandigarh. She reported with severe bleeding and endometrial testing for Histopathology was advised by OPs. She got her test conducted from Ashok Clinical Laboratory, vide Ex.C-2 on 11.08.2012 and Microscopic examination showed Trophoblastic tissue, suggestive of products of conception and no evidence of malignancy is seen. On her reference by OPs no.1 and 2 to PGI, she was examined by Department of Cytology & Gynaecologic Pathology thereat on 11.09.2012 and diagnosis of Choriocarcinoma was observed by PGI. The ultrasound report at PGI is Ex.C-4 of complainant. CT Scan report is Ex.C-5. Ex.C-6 is admission card of the complainant at PGI. The treatment given to her is recorded in it. Ex.C-8 is legal notice sent by the complainant to OPs no.1 and 2 and Ex.C-9 is reply sent by counsel for OPs no.1 and 2 to the complainant.

8.      The OPs also produced on record rebuttal evidence to refute the case of the complainant. Affidavit of Dr. Sunita Garg Ex.OP-A, affidavit of Narinder Manchanda Manager NIC Ex.OP-B. Ex.OP-1 is the insurance cover. Ex.OP-2 is the MBBS Degree of Dr. Sunita Rani d/o Sh. Vidya Sagar Bansal. Ex.OP-3 is degree of Medicine of Dr. Sunita Rani d/o Vidya Sagar Bansal. Ex.OP-4 is registration certificate of additional medical qualification of Dr. Sunita Rani issued by Punjab Medical Council. Renewal certificate of Dr. Sunita Rani is Ex.OP-5. Certificates of approval ares Ex.OP-6 and Ex.OP-7. Certificate of registration is Ex.OP-8. The literature of Dilation and Curetage (D&C) is Ex.OP-9. Ex.OP-10 further medical literature of Dilation and Curettage on the record. Ex.OP-11 and Ex.OP-12 are medical literature from the website of D &C (Dilation and Curettage). Ex.OP-13 is prescription slip pertaining to the complainant. Report of Board of Directors is Ex.OP-14 exonerating OPs no.1 and 2 in this regard. Ex.OP-15 is the detailed report submitted by them. Ex.OP-16 is the treatment record. Ex.OP-17 is report of Ashok Clinical Laboratory.  Ex.OP-18 is Gynecological Histopathology Report. Ex.OP-19 and Ex.OP-20  are insurance policy documents.

9.      On evaluation of above-referred evidence on record and hearing respective submissions of counsel for the parties, we have come to this conclusion that the complainant was affected with severe bleeding per vagina. She came for treatment to the hospital of OP no.1, wherein OP no.2 is Gynecologist.  The complainant was given immediate treatment to stop the bleeding, as excessive bleeding would have proved to be quite fatal for her. As per medical literature Ex.OP-10 of D&C procedure, it is clear that D&C are commonly performed for the diagnosis of gynecological conditions leading to 'abnormal uterine bleeding', to resolve abnormal uterine bleeding (too much, too often or too heavy a menstrual flow), to remove the excess uterine lining in women who have conditions such as polycystic ovary syndrome (which cause a prolonged buildup of tissue with no natural period to remove it), to remove tissue in the uterus that may be causing abnormal vaginal bleeding, including postpartum retained placenta, to remove retained tissue (also known as retained POC or retained products of conception) in the case of a missed or incomplete miscarriage, and as a method of abortion that is now uncommon. In contrast, D&C remains 'standard care' for missed and incomplete miscarriage in many countries despite the existence of alternatives currently used for abortions. The complications of D&C have also been given in the medical literature. The complainant was duly explained about the same. It is, thus, evident from perusal of medical literature that D&C are commonly performed for stopping abnormal bleeding. It cannot be said that OPs no.1 and 2 departed from medical protocol in carrying out procedure of D&C on the complainant. D&C is the recognized medical protocol for removing bleeding per vagina in the ladies in gynecologist disorder.  The grievance of the complainant is that D&C procedure was performed by complainant thereafter, she again started bleeding per vagina and again D&C procedure had to be performed by OPs on her. We have also observed that D&C procedure is standard medical protocol of treatment to stop the bleeding per vagina of ladies. We do not find any abnormality against medical protocol conducted by OP no.2 in treating the complainant in this regard. OP no.2 referred the complainant to tertiary center of PGI Chandigarh, when she doubted some matter in it. The PGI discovered the complications of Chriocarcinoma in the complainant, as per report of PGI Chandigarh dated 11.09.2012 issued by Department of Cytology and Gynecologic Pathology, vide CR No. 3623214.

10.    On the above counts, we do not find medical negligence on the part of OPs no.1 and 2. The complainant had already undergone LSCS and also underwent tubectomy in her pregnancy previously. LSCS is lower segment caesarean section and is the most commonly used type of caesarean section used today. It includes a transverse cut just above the edge of the bladder and results in less blood loss and is easier to repair than other type of caesarean sections. D&C procedure are commonly performed for stopping abnormal bleeding. The risk factor ranges from 25 to 30% in D&C procedure. Doctor has to take risk to save the life of patients as excessive bleeding could have resulted in the death of the complainant. Had OPs no.1 and 2 not resorted to the this procedure, life of the complainant would not have been saved. DUB (Dysfunctional Uterine Bleeding) is a disorder that occurs most frequently in women at the beginning and end of their reproductive lives.  OP no.2 is a qualified Gynecologist, which fact is proved on the record by her medical qualifications Ex.OP-2 to Ex.OP-8 on the record. It cannot be said that OP no.2 was not qualified Gynecologist as she has prescribed the treatment to the complainant as per medical protocol and has not violated the same. It is also proved fact that complainant has not reported after first D&C to OPs no.1 and 2 for further follow up treatment and started taking medication from somewhere else. The complainant herself interfered in the follow up treatment, which was started by OP no.2.

11.    The complainant field complaint against OPs to the authorities, vide report Ex.OP-14 and Ex.OP-15. The District Welfare Officer, Civil Surgeon Patiala exonerated OP No.2/Dr. Sunita Rani  in this case ruling out any medical negligence on the part of OP no.2. The grievance of the complainant is that no ultrasound was recommended for her by OP no.2 and hence OP no.2 is medically negligent on this point. We are not impressed with this submission of counsel for complainant on the record. D&C was the immediate treatment to stop the excessive bleeding in the complainant, which could have taken life of the complainant, if remained uncontrolled. PGI Chandigarh is certainly equipped with extra modern techniques, where the tests are conducted by going deeper into the matter. PGI, Chandigarh discovered Choriocarcinoma in the complainant in biopsy.

12.    The Apex Court has held in Kusum Sharma and others versus Batra Hospital & Medical Research Centre and Others, reported in 2010(2) CLT Page 282 that a mere deviation from normal professional practice is not necessarily evidence of medical negligence. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable, if the course of action chosen by him was acceptable to the medical profession. Negligence is the breach of a duty exercised 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. A medical practitioner would be liable only, where his conduct fell below that of the standards of a reasonably competent practitioner in his field. Negligence cannot be attributed to a doctor, so long as he performs his duties with reasonable skill and competence. It would not be conducive to the efficiency of the medical profession, if no doctor could administer medicine without a halter a around his neck. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. Apex Court has also held in Jacob Mathew versus State of Punjab and another, reported in 2005(3) CLT Page 358 that "an error of judgment on the part of professional is not negligence per se. No sensible professional would intentionally commit an act or omission, which would result in loss or injury to the patient, as the professional reputation of the person is at stake.  A surgeon with shaky hands under fear of legal action cannot perform a successful operation. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure  which the accused followed."

13.    Consequently, the District Forum has rightly found no medical negligence in this case on the part of OPs. We further find support from law laid down by Apex Court in Nizam Institute of Medical Sciences and Prasanth S. Dhananka reported in 2009(3) CPR 81 (SC) that mere misjudgment or error in medical treatment by itself would not constitute negligence. There is no expert report on the side of the complainant to prove any medical negligence on the part of OPs. The onus initially laid on the complainant to prove medical negligence has not been established on the record. Consequently, we are in agreement with the findings of the District Forum recorded in the order under challenge in this case. The order of the District Forum, is, thus, affirmed, finding no illegality or material irregularity in it.

14.    As a result of our above discussion, there is no merit in the appeal and same is hereby dismissed.

15.    Arguments in this appeal were heard on 15.02.2017 and the order was reserved. Copies of the order be communicated to the parties as per rules.

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

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

                                                                              (J.S GILL)

                                                                               MEMBER

 

                                                                                                         

February 17,  2017                                                             

(ravi)