Punjab

StateCommission

A/11/1052

Pancham Pal Singh - Complainant(s)

Versus

Kamla Devi - Opp.Party(s)

Mukand Gupta

02 Feb 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

First Appeal No. 1052 of 2011

                                                           

                                    Date of institution: 11.7.2011  

Date of Decision :   2.2.2015

 

Dr. Pancham Pal Singh, Medical Officer, Mata Ganga Hospital, R/o H. No. 145, Civil Lines, Patiala

…..Appellant/Op No. 2

                                      Versus

1. Kamla Devi w/o Gurcharan Gi, R/o Daulatpur Faqeeran Tehsil and District Patiala.

…Respondent No.1/Complainant

2. Mata Ganga Hospital, #1, Lower Mall, Near Ragho Mara Puli, Patiala.
3. Dr. Poonam Medical Officer, Mata Ganga Hospital, resident of Malhotra House, H. No. 928-G, Gali No. 1, Near Karam Ashram, Sirhind Gate, Patiala.
4. Dr. B.P. Singh, Pal Urology and Stone Centre (Kidney Hospital), Chaman Colony, Patiala.
5. Dr. S.K. Singh, Professor / Incharge, Department of Urology, Service Unit AUC, Level-II, Uro-level, Nehru Hospital, Postgraduate Institute of Medical Education and Research, Chandigarh – 160 012 (Deleted vide order dated 14.9.2011)
6. United India Insurance Company Ltd., (Cover Note No. 588336 dated 10.2.2005) Branch Office, Patiala through its Branch Manager.
7. The New India Assurance Co. Ltd. (Cover Note No. 216608 dated 18.3.2005), Opp. Income Tax Office, Patiala through its Branch Manager.

…..Respondents No. 2 to 7/OP No. 1, 3, 4, 6 & 7.

 

First Appeal against the order dated 23.2.2011 passed by the District Consumer Disputes Redressal Forum, Patiala.

 

Quorum:-

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

 

Present:-

          For the appellant             :         Sh. Mukand Gupta, Advocate

          For respondent No.1        :         None.

          For respondent No.2        :         Ex.-parte

          For respondent No.3        :         None

          For respondent No.4        :         Sh. Parminder Singh, Advocate

          For respondent No. 5       :         Deleted vide order dated 14.9.2011

          For respondent No. 6       :         Dr. D.K. Dogra, Advocate

For respondent No. 7       :         Sh. R.K. Bhatti, Advocate for

Sh. Puneet Sharma, Advocate

 

2^nd Appeal

 

First Appeal No. 901 of 2011

                                                           

                                     Date of institution: 8.6.2011  

 

1. United India Insurance Company Ltd., Regional Office, SCO – 123-124, Sector 17-B, Chandigarh through its duly constituted attorney.
2. Dr. Pancham Pal Singh, Medical Officer, Mata Ganga Hospital, R/o H. No. 145, Civil Lines, Patiala (deleted vide order dated 14.9.2011)

…..Appellants/Op No. 7

                                      Versus

1. Kamla Devi w/o Gurcharan Gi, R/o Daulatpur Faqeeran Tehsil and District Patiala.

…Respondent No.1/Complainant

2. Mata Ganga Hospital, #1, Lower Mall, Near Ragho Mara Puli, Patiala.
3. Dr. Poonam Medical Officer, Mata Ganga Hospital, R/o Malhotra House, H. No. 928-G, Gali No. 1, Near Karam Ashram, Sirhind Gate, Patiala.
4. Dr. B.P. Singh, Pal Urology and Stone Centre (Kidney Hospital), 9, Ghuman Colony, Patiala.
5. Dr. S.K. Singh, Professor / Incharge, Department of Urology, Service Unit AUC, Level-II, Uro-level, Nehru Hospital, Postgraduate Institute of Medical Education and Research, Chandigarh – 160 012 (Deleted vide order dated 14.9.2011)
6. The New India Assurance Co. Ltd. (Cover Note No. 216608 dated 18.3.2005), Opp. Income Tax Office, Patiala through its Branch Manager.

…..Respondents No. 2 to 6/OP No. 1, 3, 4, 5 & 7.

 

First Appeal against the order dated 23.2.2011 passed by the District Consumer Disputes Redressal Forum, Patiala.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

 

Present:-

 

          For the appellant             :         Sh. D.K. Dogra, Advocate

          For respondent No.1        :         None.

          For respondent No.2        :         Ex.-parte

          For respondent No.3        :         None

          For respondent No.4        :         Sh. Parminder Singh, Advocate

          For respondent No. 5       :         Deleted vide order dated 14.9.2011

          For respondent No. 6       :         Sh. R.K. Bhatti, Advocate for

Sh. Puneet Sharma, Advocate

 

 

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

                   This order will dispose of both the above mentioned two appeals as both the appeals are cross appeals and against the impugned order dated 23.2.2011 passed in Consumer Complaint No. 488 dated 21.11.2006 by the District Consumer Disputes Redressal Forum, Patiala(in short the “District Forum”) vide which the complaint filed by Kamla Devi was partly allowed with a direction to the Ops No. 1 & 4 to jointly and severally pay a sum of Rs. 5 lacs to the complainant alongwith interest @ 8% p.a. within two months from the receipt of copy of the order, till the date of payment. The claim of OP Nos. 2 & 4 shall be paid by their insurance companies Op Nos. 6 & 7. Rs. 5,000/- were assessed as cost of the complaint.

2.                The complaint was filed by the complainant Kamala Devi against the opposite parties on the allegations that she was suffering from pain and heaviness in the lower part of her abdomen and she was taken to Op No. 1 on 1.12.2005 where she was examined by Op Nos. 2 & 3 and was referred to Delta Spiral CT & Ultra Sound Scan Centre and her Ultra Sound Scan was conducted and she paid Rs. 450/-. After going through the said report, OP Nos. 1 & 2 diagnosed the problem of Fibroid Uterus and advised the complainant to get herself admitted with Op No. 1 for Hysterectomy for which she will have to pay Rs. 18,000/-. She got herself admitted with Op No. 1 on 2.12.2005 and deposited Rs. 18,000/- but no receipt was issued. On 3.12.2005, she was operated upon by Op Nos. 2 & 3 and uterus of the complainant was removed by Hysterectomy. However, it was not sent to Histopathological examination. After the surgery there was no respite from pain to the complainant, rather, a new problem had arisen to the complainant as the Urination of the complainant had become irregular and uncontrollable and it had decreased considerably. It stopped coming from the Catheter and there was severe pain in the abdomen. She also suffered high fever. But OP Nos. 2 & 3 assured not to worry. However, when the condition of the complainant did not improve and problem aggravated when Urine started coming out of Vagina. On 10.12.2005, she was sent to Delta Spiral CT & Ultra Sound Scan Centre for Ultrasound, it was done and she paid Rs. 450/-. But Op Nos. 2 & 3 could not diagnose the problem and she was again referred for an CT Scan and Ultra Sound for which she paid Rs. 1750/- and Rs. 450/-. Even then they could not diagnose the problem and block the leaking of urination, however,  she was referred to Dr. B.P. Singh. She was examined by the said Doctor on 12.12.2005 and diagnosed the problem as “Post Tah Bilateral Hydroureteronephrosis with Urinary Leakage Per Vaginum with Uremia” and advised for two surgeries and demanded Rs. 12,500/-, for each. Rs. 12,500/- were deposited with Op No. 4. Op No. 2 was also present at the time of surgery and J.J. Stent was placed on left side Ureter and right Ureteric catheter upto right PU junction was placed and was referred back to OP No. 1 and advised to visit again after week. She remained admitted with Op No. 1 for 16.12.2005 to 23.12.2005 and again taken to Op No. 4 but during that period there was no respite from urine leakage and fever. On 25.12.2005, the complainant was again asked to deposit Rs. 12,500/- with Op No. 4 for further surgery, which was performed by Op No. 4 and JJ Stenting was attempted on right ureter but stent was not placed upto upper part of the Ureter because it was already injured / ruptured during the previous surgery and attempt to put stent was abandoned. A Uretric catheter was placed on the right side and percutaneous nephrostomy (in short ‘PCN’) tube be placed. After sometime blood and mucous started oozing out from the PCN, which indicated infection or blockage inside the body. The complainant again visited the OP for post operative check up on 7.1.2006. Ultrasound was got done at Dr. Narula’s C.T. X-ray Ultrasound and CT Scan Centre and she was advised to reach again after 15 days. On 23.1.2006, complainant again went to Op Nos. 4 & 5 for review and she was advised an other Ultrasound and she was asked to again come after 15 days. However, there was no improvement in the condition of the complainant. The blood mucous and Pus continued to ooze from the right hand PCN. On 7.2.2006, the complainant again visited OP No. 4 and she was again advised for Ultrasound, which was got done and an other Ultrasound was repeated. Then CT Scan was got done on 4.3.2006 for which she paid Rs. 1750/-. Three operations and surgeries were performed one after the other without the complainant knowing as to why these have been done. The repeated surgeries have affected the body of the complainant. Then on 22.2.2006, they visited Walia Hospital and after seeing the old record and condition of the complainant, she was referred to PGI, Chandigarh. The complainant visited OPD in Urology Department in PGI on 6.4.2006 and complete investigation was conducted by Doctors at PGI and told that during the removal of uterus and other surgeries OPs had caused considerable damage to both the Ureters and damage to the right Ureter was more than 5-6 cm, just below the right kidney. The urine which was produced by the right kidney was leaking and passing through the abdominal cavity and then coming out through Vagina. The left Ureter was also injured and there were two strictures in the left ureter and urine was not coming out in the urinary bladder. The PGI diagnosed the problem of the complainant as post Hysterectomy uretric injury and that the surgery was conducted negligently by unqualified doctors. Various tests were performed on 6.4.2006 and 7.4.2006 at PGI, Chandigarh. Then as per the advice given by the Doctors of PGI, she got herself admitted in PGI for further treatment and major surgery was performed in body of the complainant on 30.8.2006 under General Anaesthesia by a team of Doctors headed by Dr. S.K. Singh, which continued approximately 12 hours in which right ureter had to be reconstructed after taking away part from small intestine and on the left damaged ureter was repaired with the help of Lazer and a tube known as DJ Stent was put in. The complainant had to stay at Chandigarh for almost four months and she has to spent Rs. 1,000/- daily on diet and other routine requirements and also spent Rs. 80,000/- for treatment and medicines at the PGI. Even at the time of discharge, the Doctors had pointed out that she might require other surgery. The present condition of the complainant was due to the negligence on the part of OP Nos. 1 to 4. Op No. 1 was not equipped with proper facilities and Op Nos. 1 to 3 were not efficient and careful enough to perform the surgeries and their action had brought the complainant very near to death. Even now she is living in the shadow of death and not able to lead her normal life and repeated surgeries had made her unfit for consuming the conjugal rites and has been rendered to perpetual misery. Whereas Op Nos. 1 to 4 had not showed even minimum standard of knowledge and accuracy and accordingly, the complaint was filed to pay Rs. 10 lacs for negligent act for deficiency in services on the part of Op Nos. 1 to 4, Rs. 5 lacs for causing mental agony, harming the body/ health of the complainant, Rs. 3 lacs as cost of various surgeries and Rs. 1.5 lacs for the extra expenditure incurred on the stay and daily expenses and Rs. 30,000/- as cost of litigation.

3.                OP No. 5 was ex-parte whereas others had contested the complaint. Op No. 1 in its reply admitted that the complainant come to check up on 2.12.2005 in their hospital and was examined by OP Nos. 2 & 3. However, it was denied that a sum of Rs. 18,000/- was charged from the complainant. The Operation Theatre was fully sterilized and after carrying out the necessary tests, OP Nos. 2 & 3 advised the complainant for operations as per medical ethics. No deficiency in services has been alleged against Op No. 1. It was further admitted that the complainant remained admitted in his hospital from 16.12.2005 to 23.12.2005. Other contentions were denied or stated that these does not refer to OP No. 1.

4.                Op No. 2 in its written reply had taken the preliminary objections that the complaint filed by the complainant was not maintainable under the Act as no consideration was paid by the complainant, therefore, the complainant was not a consumer; the complaint requires voluminous evidence, which cannot be decided in the summary procedure and it can be decided in the Civil Suit; complainant had not come to the Forum with clean hands and the complaint was filed just to harass the Ops. Op No. 2 was qualified Surgeon and had passed his MBBS in the year 1999, did his Master’s Degree in Surgery in 2001 remained as Senior Resident for six months in the Medical College and Hospital and lateron working as Assistant Professor in Surgery in that institute for about three years. On merits, it was admitted that the complainant approached them on 1.12.2005 and she was referred for Ultra Sound and after going through the said report, it was found that the complainant was suffering from Fibroid Uterus and was advised surgery Hysterectomy. It was denied that she was told that fee of operation will be Rs. 18,000/-. It was also denied that the complainant was referred for Ultra Sound to Delta Spiral CT and Ultra Sound Scan Centre. She was getting the reports of her own. However, it was admitted that she was admitted in the hospital on 2.12.2005, nothing was charged and hysterectomy was done on 3.12.2005. Uterus of the complainant was removed and catheter was placed for smooth excretion of urine and the stitches were appended. The uterus was not sent for Histopathological Examination as the complainant was not ready to pay the charges. It was denied that there was no respite after the surgery. It was also denied that she faced any problem of irregular and uncontrollable or output of the urine. It was also denied that urine stopped coming from the catheter or she was having severe pain in abdomen and was having high fever. Their story is totally false, fabricated and concocted. She was quite satisfactory upto 7.12.2005. However, on 8.12.2005 her condition changed, she had been one episode of vomiting and her urine output decreased. It was denied that after 2-3 days, the problem of the complainant was aggravated. It was denied that she was referred for Ultrasound and CT Scan from time to time. In fact IVU (Intra Venous Urography) of the complainant was not conducted at Ultrasound Centre. It was denied that OP Nos. 2 & 3 could not diagnose the problem or that she was referred to Op No. 4 and Op No. 2 accompanied her to OP No. 4. It was denied for want of knowledge that Op No. 4 had advised for two surgeries and demanded Rs. 12,500/- for each. It was also denied that the complainant had also approached the Urology Department of PGI, Chandigarh on 6.4.2006. It was also denied that Doctors of PGI told the complainant that during removal of the Uterus or other surgery conducted by OP Nos. 2 to 4 had caused considerable damage to both the ureters and damage the right ureter for about 5-6 cms, just below the kidney or that the urine produced by the Kidney was leaking to the abdominal cavity coming out from vagina or that left ureter was also injured and that there were two strictures. Other allegations with regard to Op No. 4 and treatment taken at PGI had either been denied or were denied for want of knowledge. It was pleaded that there was no negligence on the part of this OP. The amount of compensation demanded by the complainant is highly exaggerated. It was submitted that the complaint was without merit and it be dismissed.

5.                OP No. 3 in its reply took the preliminary objections that the complaint was not maintainable and it was bad for mis-joinder of necessary parties. This OP was wrongly added as a party. On merits, it was stated that the complainant was not a consumer qua this Op. The complainant was admitted with Op No. 1 and Op No. 2 had advised for surgery Hysterectomy. The complainant was operated upon by OP No. 2, who is a qualified surgeon. It was also denied that after surgery there was no respite from pain to the complainant or during the surgery or new problem regarding pass of the urination had arisen to the complainant. It was further submitted that upto 7.12.2005, her condition was stable but she had a vomiting on 8.12.2005 and her urine output had decreased and some tests were recommended and on the basis of tests, she was referred to Urologist for further treatment i.e. OP No. 4. Whereas OP No. 3 had no concern with the treatment given by OP No. 4. It was denied that due to the removal of uterus or the surgeries conducted by Op No. 4 considerable damage was caused to the Ureter of the complainant. This OP denied for want of knowledge for the treatment taken by the complainant from the PGI. Allegations in the complaint on the basis of observations made by Doctors at PGI were also denied. It was submitted that the complaint was without merit and it be dismissed.

6.                OP No. 4 in its reply stated that the complainant was brought to this OP by OP No. 2 on 12.12.2005 and investigation showed “Bilateral Hydroureteronephrosis with partially distended bladder with moderate ascites on ultrasound”. IVP was also done/showed bilateral delayed excretion with suggestion of Hydronephrosis. The TLC had arisen to 17200 per cmm. The serum creatinine was 10.1 mg. %. The clinical impression observations was post TAH/Uremia/Bilateral Hydroureteronephrosis with bilateral ureteric injury. The treatment plan was cystoscopy/attempt at JJ stenting to improve the general condition of the patient. At no point, it was told that two surgeries for Rs. 12,500/- each will be required. The patient had undergone emergency cystoscopy/bilateral RGP/ureteroscopic placement of JJ stent on the left side. A ureteric catheter had placed, which however could not be passed up in the kidney and was left at PU junction. It was observed that during the uretroscopy, there was injury in the mid ureter with extravasation. In the post operative period, the general condition of the patient started improving and fever improved and ultimately, she was discharged on 16.12.2005 and referred to Op No. 1. The complainant again reported on 23.12.2005 for JJ Stent. By that time, the condition of the complainant had improved considerably. She had a mass in the right abdominal flank, which was tendered on palpation. She underwent cystocopy/attempt at JJ Stenting but ureterac catheter was blocked and did not allow the passing of 0.022” zebra guide wire through its lumen. Therefore, it was not possible to reach the upper ureter. Hence, a urine from the right kidney was diverted using percutaneous nephrostomi (PCN). It was denied that the blood and mucus had started oozing from PCN. However, the urine produced by right kidney was coming out from PCN and she was advised for check up after 15 days. It was denied that there was no improvement in the condition of the complainant. The complainant had come to OP No. 4 on 7.2.2006 and she advised Ultrasound, which showed decreased in the size of right periureteric collection. The rational endoscopy procedure performed by this OP was fully explained to the patient and her attendants. It was denied that endoscopy procedure and tests done in the post operative procedure had badly affected the body and health of the complainant. There is nothing in the note given by Dr. R.P.S. Walia on 22.3.2006 which suggested the worst condition of the patient was endangering her life. It was denied that Doctors of the PGI told that considerable damage was caused to her body or ureters by this OP. It was denied that the urine, which was produced by the right kidney was going into abdominal cavity and was coming out through vagina. Rather the note of the Doctor of the PGI had observed that peri vaginal area was healthy and there was no leakage from the vagina and there was no definite defect in the vagina and on direct visual inspection there was nothing leak, which showed that the patient had recovered from the urinary leakage from the vagina. It was denied that the Doctor in the PGI had told that the previous surgery was done negligently by unqualified Doctors. It was also denied that PCN of the right hand side of the complainant was causing trouble. It was also denied that the complainant had to sit at Chandigarh for four months and had to spend Rs. 1000/- daily. There was no negligence on the part of this OP. The claim of the complainant was quite exaggerated. No merit in the complaint and it be dismissed.

7.                OP No. 6 in its reply submitted that Op No. 2 was covered with the policy No. 111006/46/04/34/00001405 for the period 10.2.2005 to 9.2.2006 for a sum of Rs. 10 lacs. For the allegations, it was submitted that reply submitted by Op No. 2 be also considered as their reply and ultimately, it was submitted that there was no negligence on the part of OP No. 2, therefore, this OP was not liable to pay compensation to the complainant.

8.                OP No. 7 in its reply had taken the preliminary objections  that the complaint was not maintainable as the complicated questions of law and facts were involved and only Civil Court was competent to try this complaint. On merits, it was admitted that this Op had issued Dr. Protection Shield Policy in favour of Dr. B.P. Singh for a sum of Rs. 2 lacs for the period 18.3.2005 to 17.3.2006. However, this OP had got no liability as OP No. 4 had committed no medical negligence in the service and negligence in providing treatment to the complainant. OP No. 4 was highly qualified Urologist, done his M.S. Surgery in 1991 and lateron Super Specializationfrom AIIMS and having OPD & Indoor facilities at his clinic. OP No. 4 had provided a best treatment. With regard to other allegations, the reply filed by Op No. 4 has been adopted. No deficiency in services on the part of this OP.  Complaint was without merit and it be dismissed.

9.                The parties were allowed by the learned District Forum to lead their evidence.

10.              In support of his allegations, the complainant had tendered into evidence her affidavit Ex. C-1, affidavit of Malkit Singh Ex. C-2, photographs Exs. C-3 to 6, discharge slip Ex. C-7, ultra sound report & photograph Exs. C-8&9, KU report Ex. C-10, discharge transfer summary Exs. C-11 & 12, Himotology report Ex. C-13, Bio Chemistry Report Ex. C-14, OPD Slip Ex. C-15, Ultra sound report Ex. C-16, Ultra sound photograph Ex. C-17, OPD slip Ex. C-18, Ultrasound report & photograph Exs. C-19 & 20, Ultrasound report & photograph Exs. C21 & 21A, KU report Ex. C-22, OPD of Walia Hospital Ex. C-23, OPD of PGI Ex. C-24, OPD of PGI Ex. C-25, discharge slip of PGI Ex. C-26, advance receipt Ex. C-27, test receipt Ex. C-28, General receipt Ex. C-29, bill Exs. C-20 to C-110, letter Ex. C-111, affidavit of Dr. S.K. Singh Ex. C-112, request of operation Ex. C-113, Digaram showing operation Ex. C-114. On the other hand, OP No. 1 had tendered into evidence affidavit of Anil Goel, Prop. OP No. 2 had tendered into evidence affidavit Ex. R-1, Degree & Certificates Exs. R-2 to 8, literature Ex. R-9, literature from Book Beyond Boundaries Ex. R-10. OP No. 3 had tendered into evidence affidavit of Dr. Poonam Ex. RW-3/A, certificates Exs. RW-3/B to RW-3/J and letter dt. 30.5.06 from Jila Parishad Ex. RW-3/K. OP No. 4 had tendered into evidence affidavit of Dr. B.P. Singh Ex. RW-4/A. OP No. 6 had tendered into evidence affidavit of Kulwinder Singh, Br. Manager Ex. RB. Op No. 7 had tendered into evidence affidavit of Prabh Dass, Divn. Manager Ex. RW-7/A, policy Ex. RW-7/B.

11.              After going through the allegations in the complaint, written replies filed by the various OPs, evidence and documents brought on the record, the complaint was allowed against OP Nos. 1 to 4 jointly and severally and that the claim of OP Nos. 2 & 4 was ordered to be covered by their insurance companies OP Nos. 6 & 7.

12.              We have heard the learned counsel for the parties and have gone through the written arguments submitted by learned counsel for respondent No. 1.

FIRST APPEAL NO. 1052 OF 2011

13.              This appeal has been filed by OP No. 2. It has been contended by the counsel for the appellant that OP No. 2 had conducted the surgery of the complainant by removing the uterus as the complainant was suffering from fibroid uterus, which was done successfully. However, by removing the uterus of the complainant, there was complication as the uterer was damaged. It is a complication which could arise as per the medical science and as and when this OP came to know the problem, the complainant was referred to the Urologist, who conducted certain surgery and she was also taken to the PGI where one minor and one major surgery was conducted and her right uterer was reconstructed and left uterer was treated with lazer endoscopy. This OP was fully qualified to perform the surgery for removal of the uterus and the problem suffered by the complainant was known complication, which was lateron taken care by Op No. 4 and Doctors at the PGI. He has referred to the judgment “V. Krishnarao Vs. Nikhil Super Speciality Hospital” 2010(2) CPC 647 (SC) that as per Bolam test, Doctor is not guilty of negligence if he acted in accordance with practice accepted as proper by responsible body of medical man skill in a particular art. This OP conducted the surgery for removal of Uterus, had not committed any medical negligence while performing the surgery. But despite that the complaint was allowed by the District Forum and a hefty amount of Rs. 5 lacs was awarded to the complainant.

14.              As is clear from the points taken in the grounds of appeal, the appellant mainly the counsel for this OP has submitted that in case there was some problem in the right and left Ureter of the complainant while performing the surgery Hysterectomy, which was a known case of the procedure. The OP was fully competent to perform the surgery and had conducted the surgery as per the accepted medical norms. No doubt that the Doctor had a sufficient qualification to conduct the surgery Hysterectomy but it is required to be seen whether the surgery has been conducted with proper care and precaution. In case damage has been done to the Ureters during the surgery and as per the reports available on the record, the damage to the right Ureter was 5-6 cm immediately below the right kidney and urine coming from the right kidney was passing to the abdominal cavity and from there it was coming through Vagina, which has upset normal life of the lady. During the course of arguments, the counsel for the appellant/OP No. 2 has referred to Medical Literature i.e. ‘Operative Injuries to the Ureter, Prevention, Recognition and Management’ Ex. R-9 wherein it has been observed that ‘Intra operative consultation for ureteral injury was sought in 15 women. 37 were evaluated and diagnosed to have ureterovaginal fistula and/or ureteral obstruction in the postoperative period.

15.              In case we go through the above referred literature, it has been mentioned that urinary injuries are far less as compared to bladder injuries and in case it happened then intervention and a decision for endoscopic procedure or even open surgical correction has to be made immediately in order to save the kidney and prevent or stop the urinary leakage. Whereas in the present case, the operation was conducted as on 3.12.2005 and as admitted by OP No. 2 in its written statement that complainant started problems w.e.f. 8.12.2005 when she had incident of vomiting and urine output had decreased and then she was referred to and OP No. 2 had referred the patient to Op No. 4 where she remained admitted w.e.f. 16.12.2005 to 23.12.2005 and as per the written reply filed by Op No. 4, the patient had undergone emergency cystoscopy/bilateral RGP/ureteroscopic placement of JJ stent on the left side on 16.12.2005 whereas on the right side JJ Stenting was not possible as upper part of the Ureter had already injured/ruptured during the previous surgery. The reference made by OP Nos. 2 to 4 further reveals that the hospital OP No. 1 was not fully equipped hospital and it was not having procedure for all the complications and that the hospital may not be having the services of Urologist, therefore, she has to refer the patient to OP No. 4 and ultimately, the treatment was given by the PGI and the observations of the PGI at the time of admission has been made by Dr. S.K. Singh, Professor of Urology in its note Ex. C-111 stated that the complainant approached PGI on 6.4.2006 with Urinary diversion of right kidney with PCN and left sided ureteric stent and give the history of urinary leakage 7 days after abdominal hysterectomy, which was managed by a Urologist at Patiala and in the PGI she had undergone one minor and one major surgery on 6.7.2006 and 30.8.2006. Her right ureter was reconstructed with a segment of small bowel and her left ureteric narrowing was treated with laser endoscopically. In case the damage to the ureteric is to that extent whether it can be known complication where the injury is 5-6 cm, answer to this will certainly be ‘NO’. On this point, there is latest judgment of Hon’ble National Commission reported as 2014(4) CLT 8 “J.D. Bagree Hospital & Others versus Vandana Goyal”, wherein it has been observed that in case right ureteric injury was caused to the patient resulting in extensive damage to her for which she had undergone treatment at two other hospitals subsequently, it is an established case of medical negligence. In the present case also firstly after Hysterectomy of surgery, she was taken to OP No. 4 but OP No. 4 could not manage the things and then she was taken to the PGI where the treatment was done as suggested above by Head of the Department Dr. S.K. Singh. Even if some problem had come during the Hysterectomy surgery, in case the Ops have immediately controlled it then the problem could not have aggravated to the extent that the complainant had to undergo two surgeries with Op No. 2 and then two surgeries in the PGI and now the condition of the complainant is critical and she has been deprived to enjoy even her conjugal rites. Therefore, we are of the opinion that the findings so recorded by the learned District Forum to hold the appellant alongwith others guilty of medical negligence are correct findings. We affirm the same.

16.              In view of the above discussion, we do not see any merit in the appeal and the same is dismissed with no order as to costs.

17.              The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to respondent No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.

18.              Remaining amount shall be paid by the appellant to respondent no. 1 within 30 days from the receipt of the copy of the order.

FIRST APPEAL NO. 901 OF 2011

19.              This appeal has been filed by United India Ins. Co. Ltd. OP No. 6; it is the Insurance Company of OP No. 2. Op No. 2 had filed First Appeal No. 1052 of 2011 referred above and that appeal has been dismissed by this Commission in the judgment referred above. The defences taken by this appellant in their defence are the same, therefore, in case the contentsions of OP No. 2 have not been accepted in the appeal filed by OP No. 2 then the role of this appellant is only that it had given the insurance cover to Op No. 2. Therefore, the ground on which this appeal has been filed by this appellant/OP No. 6 cannot be accepted.

20.              Another plea has been taken by this appellant that quantum of Rs. 5 lacs is too exaggerated. However, in case we go through the allegations as alleged in the complaint, firstly, she visited Op No. 1 and for Hysterectomy they had charged Rs. 18,000/-, apart from charges for Ultrasound and CT Scan. Then she was referred to Op No. 4 and Rs. 25,000/- was charged by Op No. 4 for conducting two operations apart from other charges in the form of tests/investigations. Then she was taken to PGI where also various investigations were conducted by the Doctors of the PGI and two operations were conducted there. She had suffered a lot of mental and physical agony because with the negligence of the Ops, Ureters were damaged and it was not possible to control the urine. Even urine started to stop to come out from the Catheter and it diverted towards abdominal cavity and them coming out through vagina. Four operations were conducted and to some extent, she has been made stable but still she feels that she is not in a position to perform her conjugal obligations. In case the lady has been brought to that extent on account of negligence on the part of the Ops then a sum of Rs. 5 lacs is not an exaggerated amount. It seems to be a very reasonable amount keeping in view the expenses incurred by the complainant to control the disease to some extent and the loss, which has been caused to her body and the mental agony under which she had gone. Therefore, we do not agree with the plea raised by the counsel for the appellant that the amount granted by the learned District Forum is exaggerated above.

21.              In view of the above discussion, we do not see any merit in the appeal and the same is dismissed with no order as to costs.

22.              The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to respondent No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.

23.              Remaining amount shall be paid by the appellant to respondent no. 1 within 30 days from the receipt of the copy of the order.

 24.             The arguments in these appeals were heard on 19.1.2015 and the orders were reserved. Now the orders be communicated to the parties as per rules.

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

26.              Copy of the order be placed on F.A. No. 901 of 2011.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

February 2, 2015.                                                                                                                                                      (Jasbir Singh Gill)

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