Haryana

StateCommission

A/407/2014

Dr. Tilak Gupta - Complainant(s)

Versus

Kamlesh - Opp.Party(s)

Shri M.K.Sood, Advocate counsel for the appellants

16 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

         

                                                         Appeal No.407 of 2014  

in F.A. No.1103 of 2008

Date of Institution: 29.04.2008

                                                               Date of Decision: 16.01.2017

 

Dr.Tilak Gupta S/o Sh.Baldev Raj Mahajan, r/o H.No.B-6, Joshi Colony Mandavali Fazal Pur, Delhi-110092.

…..Appellants

Versus

 

1.      Mrs. Kamlesh W/o Rambir r/o Adarsh Colony, Palwal, Distt. Faridabad.

2.      Om Hospital C/o Om Medical Centre Pvt. Ltd. (formerly Diamond Hospital, Delhi-Mathura road, Palwal, Faridabad.

                                      …..Respondents

 

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:              Shri M.K.Sood, Advocate counsel for the appellants.

None for the respondent.

 

                                                   O R D E R

R.K.BISHNOI, JUDICIAL MEMBER:

 

It was alleged by the complainant that due to stomach ache she went to opposite party (O.P.) No.2-appellant who was working with O.P.No.1. After ultrasound it was found that there was stone in the gall bladder and was to be removed.  After conducting other tests gall bladder was removed by way of laparoscopy chercystectomy by O.P.No.2  She was discharged from the hospital on 14.11.2002. As he was not feeling comfortable even after operation she again went to O.Ps. In the meantime her stomach also inflated and she also suffered from jaundice. This problem developed due to negligence and carelessness on the part of O.P.No.2 . Other doctors told that he did not adopt required procedure about operation and take proper care. There was continuous leakage of bile/fluid in stomach due to which she developed this problem. On 29.11.2002 when city scan was conducted it was found that there was free fluid in peritoneal cavity and there was mass CBD with gross ascitis.  Had O.P.No.2 performed proper surgery this problem would not have been there.  She remained admitted in  Batra Hospital from 29.11.2002 to 09.12.2002. Due to CBD injury T tube placing was done as the repair of CBD was not possible.  Discharge summary of O.P.No.1 and Batra Hospital were showing negligence on his part.  She had to take leave for six months. She also spent more than Rs.1,50,000/- on her treatment. The O.Ps. be directed to pay compensation as prayed for.

2.      Upon notice, both the O.Ps. filed separate replies controverting her averments. It was alleged by O.P.No.1 that O.P.No.2 was appointed w.e.f. 01.09.2009 against the payment of Rs.35,000/- per month.  Operation was conducted by O.P.No.2 on 11.11.2002 and patient was discharged on 14.11.2011. Before operation  all the procedure and complication were also told to her  and her husband. They signed consent form also. When she complained about pain and sleeplessness O.P.No.2 advised CT scan of whole abdomen. All the tests were conducted between 19.11.2002 to 28.11.2002. This fact was concealed from him by O.P.No.2.  On 28.11.2002 O.P.No.2 left it’s services with the undertaking that cases already handled  by him would be treated to the satisfaction of the patients. When O.P.No.2 was approached about  CT scan reports and pathetic condition of the complainant, he refused to render any service, so, she was referred to Batra Hospital.  On 30.11.2002  diagnostic Laproscopy was conducted at Batra Hospital and it was found that abdomen was filled with bile and pus.  Common bile duct was completely transected with bile leakage out of common bile duct, due to which abdomen was filled with bile. An exploratory Laparotomy was carried out as T-tube repair was not possible. Proper service was provided by it before and after operation.  There was no laxity on it’s part. If there was any short coming in operation  then action  should be taken against O.P.No.2. Other averments were also denied and requested to dismiss the complaint.

3.      In addition thereto, O.P.No.2 alleged that he was reputed surgeon and was conducting laparoscopy operations in routine. After ultrasound, operation was conducted with all due care and caution. There was no negligence on his part. On 19.11.2002 complainant reported about sleeplessness and sutures were also removed on that date. At that time she did not complaint about problem qua operation. She never told about jaundice or other problem to him.  He left the services of O.P.No.1 on 28.11.2002.  CBD injury is known complication of such type of operation. It could not be considered as negligence on his part. Other averments were also denied and requested to dismiss the complaint.

4.      After hearing both the parties, learned District Consumer Diputes Redressal Forum, Faridabad allowed the complaint vide impugned order dated 28.12.2005 and directed as under:-

“1.     The respondents are ordered to make payment of Rs.1,50,000/- to the complainant alongwith interest @ 12% p.a. chargeable w.e.f. the filing of the present complaint till its realization.

2.      The respondents are further ordered to pay Rs.One lakh on account of mental agony harassment, pain and sufferings to the complainant and Rs.10,000/- on account of litigation expenses.”

4.      Feeling aggrieved therefrom, opposite party No.2-appellant has preferred this appeal.

5.      None has appeared on behalf of the respondents since last six consecutive hearings. It is already 3.00 P.M. So there is no necessity to wait any more.  Arguments of only appellant’s counsel are heard. File perused.

6.      It is argued by learned counsel for the appellant that there is no evidence on the file showing  that he was negligence as far as the part of surgery is concerned. It is no-where reported by Batra hospital that due to any lapse on his part this problem had arisen.  As per discharge summary it was  a case of post laparoscopy CBD injury with biliary ascites with pentonitis.  Had there been any lapse on his part the same must have been mentioned in the discharge summary.  So he is not liable to pay any amount.  Learned District forum has also not opined that there was any negligence on his part. He has been asked to pay the compensation on the ground that he left the services on 28.11.2002.

7.      We do agree with these arguments.  It is no where opined by learned District Forum in the impugned order that appellant did not follow the proper procedure while conducting this operation. It is also not opined that he was not well qualified as far as this operation is concerned.  As per impugned order he has been penalized because he left the services of O.P.No.1 on 28.11.2002.  This is no ground to penalize any doctor. It is not necessary to continue with  any hospital for all times to come.  If any doctor leaves hospital then it is the duty of the hospital to make an alternative arrangement.

8.      More so it is mentioned in discharge summary dated 09.12.2002 that she was suffering from Post Lap Cholecystectomy CBD injury with biliary ascites  with peritonitis. This injury can occur even if competent surgeon has conducted operation. In the absence of evidence presumption cannot be drawn about negligence.  Complainant did not produce any evidence to prove negligence on the part of the appellant, so he cannot be held liable to pay the compensation. In such a situation impugned order dated 28.12.2005 is set aside as far as the case of appellant is concerned. His appeal is allowed and complaint is dismissed qua him only because O.P. No.1 has not come up in appeal.

 

January 16th, 2017     Urvashi Agnihotri                                R.K.Bishnoi,                                                               Member                                              Judicial Member                                                         Addl. Bench                                        Addl.Bench                

S.K.