BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Deepak Kumar Gupta aged about 33 years s/o Shri Ishwar Chand, R/o Village Sunti Khar Khari, Tehsil and District Saharanpur (U.P.).

          ……. Complainant

Versus

1. M.M.Institute of Medical Sciences & Research, Mullana, District Ambala (Haryana), through its' M.D./Authorised Signatory.
2. Dr. Anand Tiwait, Senior Doctor (General Surgery, Unit-IV) at M.M.Institute of Medical Sciences & Research, Mullana, District Ambala (Haryana).
3. Dr. Parsana, Medical Officer/PG at M.M.Institute of Medical Sciences & Research, Mullana, District Ambala (Haryana).
4. Dr.Sadiq, Medical Officer/ PG at M.M.Institute of Medical Sciences & Research, Mullana, District Ambala (Haryana).
5. The New India Assurance Company Limited, Branch, Ambala Cantt, through its' Branch Manager.

   ….…. Opposite Parties.

Before:         Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

           Shri Vinod Kumar Sharma, Member.           

Present:       Shri D.N. Pali, Advocate, counsel for the complainant.

                    Shri P.S.Sharma, Advocate, counsel for the OPs No.1 to 4.

                    Shri Mohinder Bindal, Advocate, counsel for the OP No.5.

Order:        Smt. Neena Sandhu, President.

1.                The complainant has filed this complaint against the Opposite Parties No.1 to 4 and later on impleaded OP-5-The New India Assurance Company Limited also (hereinafter referred to as ‘OPs’), praying for issuance of following directions to OPs No.1 to 4:-

1. To pay a sum of Rs.15,00,000/- on account of compensation for causing damages and mental tension, harassment and agony due to the gross-negligence, carelessness and greediness  and exploitation of the complainant besides the treatment expenses;
2. To grant interest on the amount of compensation @18% per annum from the date of operation i.e. from 20.09.2019 till the date of entire payment to the complainant;
3. To pay cost of litigation.
4. Grant any other relief which this Hon’ble Commission may deems fit.

2.             Brief facts of the case are that on 19.09.2019, the complainant all of a sudden had suffered severe pain in his stomach and he at once visited OP No.1 for taking his treatment to cure the severe pain of his stomach. After conducting tests by OPs no.2 to 4, who are working as Senior Doctors and Doctors, respectively at the OP No.1, disclosed to the complainant that he has Hernia Problem and operation for Hernia is to be conducted to cure the stomach pain. OPs No.2 to 4 advised the complainant to get his Hernia operation conducted to avoid any future controversy and they told to the complainant that they will conduct Hernia Operation through Durbin which will cost Rs.12,000/-. On the persistence of OPs No.2 to 4, the complainant became ready to get his Hernia Operation conducted through Durbin and accordingly he was kept admitted by OP No.1 on 19.09.2019 and was taken for conducting his operation for Hernia Problem on 20.09.2019. However, at the time of conducting the operation, OPs No.2 to 4 refused to conduct the operation through Durbin, and they told the complainant that manual operation is only possible. Thus, OPs No.2 to 4 forcibly and hurriedly conducted the Hernia Operation of the complainant on 20.09.2019 but after conducting the operation, they did not properly stitched the stomach of the complainant and he was kept admitted as indoor patient in the hospital of OP No.1 till 03.10.2019. The complainant suffered severe pain on 27.09.2019 and when the complainant informed OPs No.2 to 4 through his wife;  out of their greed they again opened the stomach of the complainant by unstitching the wombs and afterwards he was discharged on 03.10.2019 from the hospital without verifying the stitches applied by them in the stomach of the complainant. The complainant had spent more than Rs.60,000/- on his medicines, hospitalization and operation at OP No.1 hospital. At the time of discharge, the complainant complained to the doctors that he is not feeling well and he is not stable to get himself discharged from the hospital; as he needs immediate attention and attendant; but the doctors told to him that they are doctors and they are aware what they are to do. After discharge from OP No.1 on 03.10.2019, when the complainant was on the way, he suffered a severe pain in his stomach again and as such he was got admitted in Pradeep Hospital, at Jaswant Colony, Near Kamani Chowk, Bye-Pass Road, Yamuna Nagar-135 001 on 03.10.2019 itself. The doctors at Pradeep Hospital disclosed to the complainant that the operation of Hernia Problem was not properly conducted by OPs No.2 to 4 at OP No.1 hospital and moreover the stomach of the complainant was not properly stitched and his stomach is seriously infected with Hermioplasty wound. The doctor advised for conducting further operation of his stomach and the doctors at Pradeep Hospital conducted operation of stomach on 10.10.2019 and properly diagnosed him and he was discharged on 14.10.2019. The complainant has spent more than Rs.2,50,000/- on his medical treatment, medicines, admission, operation etc.. After conducting again stomach operation of the complainant at Pradeep Hospital, the complainant has been feeling relief in the pain of his stomach wound. Thereafter, the complainant contacted OPs No.2 to 4 and told them that they have not conducted his Hernia operation in a nice manner; rather they had not properly stitched the stomach of the complainant and in this manner, they have caused deficiency in service and unfair trade practice on their part and as such were asked to compensate him but they refused to do so and on the other hand, threatened him.  Hence, the present complaint.
3.           Upon notice, OPs No.1 to 4 appeared and filed written version and raised preliminary objections to the effect that this complaint is not maintainable; this Commission has got no jurisdiction to entertain and try the present complaint because the present complaint involved complicated questions and therefore cannot be decided by this Commission; the complainant has got no locus standi and cause of action to file the present complaint etc. On merits, it has been stated that the complainant had initially gone to SBD District Hospital, Saharanpur on 17-9-2019 with complaint of severe pain in stomach and it was diagnosed by the Doctors at Saharanpur that it was Incisional Hernia, meaning thereby that he was already operated upon prior to 17-9-2019 which was concealed while filing the present complaint. The complainant came as an outdoor patient with severe pain in stomach on 19-9-2019 and was diagnosed by Dr. Nitish Dhawan, as Incisional Hernia and Dr.Nitish Dhawan advised for mesh hernioplasty. The complainant was well explained, informed and after getting satisfied gave consent for open Mesh Hernioplasty Surgery and signed consent form, in which he was explained that open mesh hernioplasty will be performed. The stomach is a part of alimentary tract and it was not opened in the operation. The incision was given around the scar site, the linea alba opened, defect identified, which was around two finger loose, with swiss cheese defect above and below and repair done with interrupted prolene no 1, double breasting, overlapped by prolene mesh 6" X 6", fixed with 2-0 prolene sutures. It was anterior abdominal wall repair and not stomach repair. The complainant was stable and started taking orally on day 3 (23-9-2019), was passing stool, flatus normally till discharge and had no fever. The complainant had serious discharge from the wound site on day 9, which was not smelling foul likely due to fat necrosis, for which three skin sutures were opened to drain it properly and dressing was done daily. The sutures opened were only skin sutures. The total cost incurred by the complainant in the hospital of OP No.1 was Rs.8290/- (including investigations, bed charges, dressing charges and operation charges) along with surgical items charges (approximately Rs.3817.05 Ps) and general anesthesia drug charges (approximately Rs.1699.80 Ps). The approximate cost of medicines, incurred by the patient during his hospital stay was approximately Rs.6444.20  (post operative period) and Rs.92.54 Ps (Pre operative period). The complainant was kept in general ward throughout his admission and not in ICU in immediate post operative period. Thus, the total cost spent by the complainant at MMIMSR was Rs.20344/-. Complainant took urgent discharge in the morning on 03.10.2019 by saying that he had some urgent work and will come positively after two days for dressing. The suture removal was thus planned at a later date and the same was mentioned in the discharge ticket, but the complainant never came back. At the time of urgent discharge it was duly mentioned on the discharge statement that patient vitals are stable and is being discharged under stable condition. Sutures in Situ. Follow up advice was also given for review in surgery OPD after one week for suture removal or in case of any emergency to contact on 8059901600. But neither the complainant came up for follow up treatment, nor called for any emergency.  Rest of the averments of the complainant were denied by OPs No.1 to 4 and prayed for dismissal of the present complaint with costs.
4.           Upon notice, The New India Assurance Company Limited (OP No.5) appeared and filed written version and raised preliminary objections to the effect that this Commission has no jurisdiction to entertain and try the present complaint as the dispute involves the determination of complex and number of complicated issues, laws and facts that cannot be decided in the absence of expert and huge evidence, as such only the civil court has jurisdiction in the matter;  the present complaint is also not maintainable as the same has been filed without any cause of action; the present complaint is not supported by any expert report or opinion to prove any negligence being caused in the alleged treatment of the complainant on the part of the treating doctor; the complainant has not approached this Commission with clean hands and suppressed true and real facts; there is no relationship of consumer and service provider between the parties. etc. On merits, it has been stated that the liability, if any, the same is strictly subject to terms and conditions of the insurance policy in question. Answering OP accepts the written version filed by OPs No.1 to 4 with regard to the alleged treatment only provided to the complainant and the same be read as part of this written version, the facts are not repeated here being brevity sake. Rest of the averments of the complainant were denied by OP No.5 and prayed for dismissal of the present complaint with special costs.
5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-59 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OPs No.1 to 4 tendered affidavit of Dr. Anand Thawait/OP No.2, MBBS, MS, FACS (USA), DIPMAS, FAIGES, FMAS, FCLS, FAIS (A&H), FALS (UGI), FALS (CRS), FALS(Bariatrics), FISCP, SON OG Dr. Parmod Thawait, Professor & Unit Head, Surgery, at MM Institute of Medical Sciences & Reserch, Mullana District Ambala as Annexure OP-1/A alongwith documents Annexure OP-1 to OP-41 and closed the evidence on behalf of OPs No.1 to 4.  Learned counsel for OP No.5 tendered affidavit of Mona Bagga, Sr. Divisional Manager & Authorized Signatory, New India Assurance Co. Ltd., Divisional Office, Ambala Cantt. as Annexure OP-5/A and closed the evidence on behalf of OP No.5. 
6.           We have heard the learned counsel for the complainant and learned counsel for OPs No.1 to 5 and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that there was a sheer medical negligence on the part of OPs No.1 to 4 while treating the complainant, as a result of which he again underwent second surgery but still the treating doctors failed to treat the complainant, as a result of which, he was forced to approach to some other Hospital i.e. Pradeep Hospital, where ultimately he was treated properly. He further submitted that under these circumstances, OPs No.1 to 4 and OP No.4 being insurer of OP No.1, are liable to compensate the complainant for the medical negligence and deficiency in rendering service.
8.           On the contrary, learned counsel for OPs No.1 to 4 submitted that except bald assertions, the  complainant has failed to place on record any evidence to prove that there was any medical negligence on the part of OPs No.1 to 4.  He further submitted that the mere fact that the complainant was again admitted after first surgery, to give him treatment of the serious discharge from the wound site on day 9, which was likely due to fat necrosis, for which three skin sutures were opened to drain it properly is not a ground to say that there was medical negligence on the part of the treatment doctors.
9.           Learned counsel for OP No.5 submitted that since the complainant has filed to prove his case by way of placing on record an cogent and convincing evidence to hold OPs No.1 to 4 medical negligent, as such, this complaint deserves to be dismissed, against them and therefore there no liability can be fastened upon OP No.5, especially, when no allegations of deficiency in service or adoption of unfair trade practice have been leveled against OP No.5. 
10.           From the perusal of record, it is borne out that after performance of first surgery of Incisional Surgery (Mesh Hernioplasty) on 20.09.2019, by the treating doctors of OP No.1 Hospital i.e. by OPs No.2 to 4 upon the complainant, he was again treated by OPs No.1 to 4 for the period from 27.09.2019 to 03.10.2019 after opening the three wound sutures to drain out discharge therefrom which was likely due to fat necrosis. In WP (M/S) No. 1114 of 2019, Nisha Mathur vs. Medical Council of India and ors., decided on 06.11.2019, the Apex Court observed that the facts of each case have to be examined independently and that the mere fact that the treating doctors conducted second surgery cannot be called as an act of medical negligence. Though the complainant leveled medical negligence on the part of OPs No.1 to 4 in the matter, yet, he has failed to place on record any evidence/medical expert report to support the allegations leveled by him. Although the complainant has alleged that Doctor(s) of Pradeep Hospital told him that the operation of Incisional Surgery (Mesh Hernioplasty) was not properly done by OPs No.2 to 4, yet he has not placed on record any cogent and convincing document to prove the said fact.  Even the treating doctor(s) of Pradeep Hospital have not been impleaded as necessary party to this complaint, for the reasons best know to the complainant himself.
11.           The Hon’ble National Commission in the case titled as Dr. Harkanwaljit Singh Saini v. Gurbax Singh and Anr. 2003;(1) CPJ 153 (NC) has held that, "The Commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of an expert opinion or there is any medical treatise on which reliance could be based".
12.           In the present case, the complainant has produced, in support of his allegation, his own affidavit. This affidavit is no substitute for an expert medical opinion, to hold OPs No.1 to 4 medical negligent or deficient in providing service to the complainant. Thus, when OPs No.1 to 4 have taken a specific plea to the effect that there was no medical negligence on their part, then it was the duty of the complainant to rebut the same by filing of some medical experts opinion or to file an application for obtaining medical opinion aforesaid or to produce some independent medical expert report of a qualified doctor, but he failed to do so.
13.           In view of peculiar facts and circumstances of this case, it is held that because the complainant has failed to prove his case of medical negligence or deficiency in service or unfair trade practice on the part of the OPs No.1 to 4 or OP No.5, therefore, no relief can be given to him. Resultantly, this complaint stands dismissed with no order as to cost. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

  Announced:- 12.01.2024