Punjab

StateCommission

FA/12/1138

Balbir Singh - Complainant(s)

Versus

M/s Delhi Heart Institute & Research Centre - Opp.Party(s)

A.K.Walia

09 Feb 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

First Appeal No.1138 of 2012

                                                           

                                    Date of institution: 29.8.2012 

                             Date of Decision:    9.2.2015

 

 

Balbir Singh S/o Sh. Labh Singh, aged about 36 years, R/o Village Sivian, District Bathinda.

…..Appellant/Complainant

 

                                      Versus

 

1. Delhi Heart Institute & Research Centre, Namdev Marg, 40 Ft. Road, Bathinda through its Proprietor Dr. Naresh Goyal.
2. Dr. Naresh Goyal, Delhi Heart Institute & Research Centre, Namdev Marg, 40 Ft. Road, Bathinda.
3. Dr. K L Bansal, Delhi Heart Institute & Research Centre, Namdev Marg, 40 Ft. Road, Bathinda.
4. Medical Superintendent, Fortis Hospital, Mohali.
5. Medical Officer, Incharge NFL Hospital, National Fertilizers Ltd., Goniana Road, Bathinda (Deleted vide order dated 14.2.2011).
6. General Manager, National Fertilizers Ltd., Goniana Road, Bathinda.
7. Divisional Manager, United India Insurance Co. Ltd., The Mall, Bathinda.
8. Managing Director, United India Insurance Co. Ltd., Regd. & Head Office : 24 Whites Road, Chennai.
9. Dr. Harshbir Singh Pannu (Dr. H S Pannu), CTVS Surgeon, 1006, Sector 36 C, Chandigarh.
10. United India Insurance Co. Ltd., 54, Janpath, Connaught Place, New Delhi.

…..Respondents/Opposite Parties

 

First Appeal against the order dated 27.4.2012    passed by the District Consumer Disputes Redressal Forum, Bathinda.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

 

Present:-

 

          For the appellant             :         Sh. Bhavyadeep Walia, Advocate

          For respondent Nos. 1-3  :         Sh. Amit Aggarwal, Advocate

          For respondent No.4        :         Sh. Munish Kapila, Advocate

          For respondents Nos.5-6 :         Sh. Randeep Singh, Advocate for

                                                          Sh. Vipan Mahajan, Advocate

          For respondents No. 7, 8 & 10:  None.

          For respondent No. 9       :         Sh. A.K. Batra, Advocate

 

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellant/complainant (hereinafter referred as “the complainant”) has filed the present appeal against the order dated 27.4.2012 passed by the District Consumer Disputes Redressal Forum, Bathinda (hereinafter referred as “the District Forum”) in consumer complaint No.61 dated 1.2.2011 vide which the complaint filed by the complainant was dismissed.  

2.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the respondents/opposite parties (hereinafter referred as ‘the OPs’) on the allegations that on 26.2.2010 the complainant was having pain in his right arm and accordingly, he approached to Op No. 5 and was got checked up vide OPD Slip No. 4978 and was referred to OP No. 1. On the same, he was admitted with Op No. 1 vide registration No. 10023379. OP No. 2 Dr. Naresh Goyal attended him and conducted some medical tests on the complainant. He had undergone peripheral angiography on 27.2.2010, which revealed Thrombus in right Sub-Clavian Artery. The treatment was advised by OP No. 2 and medicines were given by Op No. 3. He was diagnosed as suffering from Peripheral Vascular Disease, which restricted the blood flow. Due to narrowing of blood vessels in severe cases Gangrene may develop and amputation may be needed. It may be caused by Atherosclerosis and accordingly, the complainant was advised Embolectomy, which is surgical removal of a lodged arterial embolus, which is a clot or other obstruction brought to a vein or artery by the blood from a larger vessel. OP No. 2 attempted Embolectomy upon the complainant but operation failed. Lateron he came to know that OP No. 2 was not competent to perform that operation because it was required to be done by a Vascular Surgeon whereas OP No. 2 is D.M. Cardiology. On 5.3.2010, the condition of the complainant deteriorated and OP Nos. 2 & 3 asked him to move immediately to Fortis Hospital, Mohali for further treatment from Vascular Surgeon, failing which his arm may be totally incapacitated and before that they will have to arrange money. On 6.3.2010, the complainant was discharged from Op No. 1 and was referred by OP Nos. 2 to Dr. Ravul Jindal, Fortis Hospital, Mohali/DMC Heart Institute, Ludhiana. This recommendation was further endorsed by Op No. 5. OP No. 2 charged a sum of Rs. 60,650/- for the treatment given by him. On 6.3.2010, the complainant was got checked by Dr. Ravul Jindal at Fortis Hospital, Mohali. He referred for various tests and its result showed that Embolectomy conducted on the complainant was totally failure as it was conducted by incompetent and unqualified person in a negligent manner. Further the Doctor of Fortis Hospital opined that there was no need for Embolectomy as the disease of the complainant was controlled through the medicines and accordingly, some medicines were prescribed and he was asked to get rechecked in OPD after four weeks. Due to the negligence on the part of Op Nos. 1 to 3, the complainant suffered 20% physical disability as per the disability certificate No. 592 dated 21.4.2010 issued by Civil Surgeon, Bathinda. Then the complainant requested Op Nos. 1 & 2 to supply the copy of Bed Head Ticket containing complete record of his treatment from 26.2.2010 to 6.3.2010 but they refused, which amounts to deficiency in services on the part of the Ops. Moreover, OP Nos. 2 & 3 did not disclose the ill effects of the Embolectomy and no informed consent was taken from him. OP Nos. 2 & 3 also did not disclose that they were not qualified and competent to perform the Embolectomy. Hence, the complaint with a direction to the Ops for a compensation of Rs. 4,81,650/-, which includes Rs. 60,650/- as medical expenses, compensation for pain and suffering for 20% disability Rs. 4 lacs, litigation expenses of Rs. 21,000/-.

3.                The complaint was contested by the Ops. Op Nos. 1 to 3 filed written reply taking preliminary objections that Dr. Naresh Goyal is the Proprietor of OP No. 1, who did his MBBS in the year 1991, MD in 1997, DM in Cardiology in the year 2002. OP Nos. 2 served as Junior Resident in medicines and surgery for one year in General Hospital at Chandigarh and thereafter as Senior Resident in Cardiology at Escorts Heart Institute and Research Centre, New Delhi for two years and as Assistant Consultant Cardiology for the period of two years from 2002 to 2004 and then he started his practice at Bathinda and had performed about 10000 Coronary Angiographies, about 1000 angioplasties were implanted, about 300 permanent Pace Makers and this Centre is considered as Pioneer and most advanced Cardiac Care Centre. OP No. 3 had done his fellowship non-invasive Cardiology and before joining OP No. 1, he worked in DMC and Hospital, Ludhiana and then in Fortis Hospital, Mohali as Senior Resident. Op No. 1 had multiple wings of Doctors, namely, Dr. Rupinder Singh Sidhu, Dr. Dalbir Brar, M.S. etc. and beside that they had many specialists, who visit this institute from time to time. Legal objections were taken that the complainant has not come to the Forum with clean hands and had suppressed the material facts; there was no deficiency in services on the part of these respondents; the complainant had not pleaded any medical negligence of these Ops with respect to the treatment given to the complainant. The allegations levelled by the complainant against these Ops relate to errors and omissions, which do not fall within the purview of the Act and that the complaint was not verified, therefore, liable to be dismissed. Dr. Harshbir Singh Pannu, MBBS, MS, Mch, Chief Cardio Vascular Surgeon, Member International Society of Minimally, Invasive Cardiac Surgery had been regularly attending this hospital for the treatment and discharge of the complainant alongwith Dr. Aman Salwan, DM, Cardiology whereas the complainant had not impleaded Dr. Aman Salwan as a party to the complaint. The Ops were insured with United India Ins. Co. Ltd., Divisional Office, 2090B, The Mall, Bathinda for the period 9.5.2009 to 8.5.2010 vide cover note No. A-488127 but the said insurance company was not made a party; intricate questions of law and facts were involved in the case, which cannot be decided in the summary manner and the matter be referred to the Civil Court and that the complaint filed by the complainant was false, frivolous and vexatious, liable to be dismissed under Section 26 of the Act with special costs. On merits, it was admitted that Balbir Singh was brought to their hospital by his brother Satbir Singh and was registered at Serial No. 100233799 and he was complaining severe pain in his right arm. On examination his BP was 140/80 and Pulse 90/min. Pulsation was feeble in right radial ulnar, brachial and axillary arteries and some other tests were conducted i.e. peripheral angiography on 27.2.2010, which revealed thrombus in the right subclavian artery and Embolectomy was advised. It was denied that it was done by Op No. 2. In fact it was done by Dr. Harshbir Singh Pannu, who was one of the Chief Cardio Vascular Surgeon, who did his Master Degree of Surgery from Govt. Medical College, Patiala and thereafter he qualified for the Degree of Majestic Chivurgiac (Cardio Vascular and Throacic Surgery) and he was associated by Dr. Gurtej Singh, Anaesthetist and all these details were mentioned in the Consumption Form duly filled in and signed by Dr. Harshbir Singh Pannu. The complainant himself had attached the referral summary indicating his admission on 26.2.2010 and discharged on 5.3.2010. It was also signed by Dr. Harshbir Singh Pannu and ill effects of the operation were explained to the complainant as well as to his attendants. It was denied that Embolectomy had failed. The Thrombus was removed by Dr. Harshbir Singh Pannu to the best of his skill. He was referred to Fortis Hospital, Mohali as per the wish of the complainant and his attendants for proper management. The report of the Angiography and results were incorporated in the report. It was denied that the condition of the patient had deteriorated on 5.3.2010. However, on that date, he was referred to Fortis Hospital, Mohali for further management as per the request of the complainant and his family members. He might have been checked by Dr. Ravul Jindal in Fortis Hospital, Mohali. However, it was denied that Embolectomy conducted on the patient was failure. No operation was conducted in Fortis Hospital for removal of the Thrombus as it was already done with these Ops. They had no personal knowledge about the treatment given to the complainant by the Fortis Hospital. Other pleas were denied and further pleaded that there was no negligence on the part of these Ops in conducting the operation. Complaint was without merit and it be dismissed.

4.                OP No. 6 in its written reply submitted that on 26.2.2010, the complainant had reported to their hospital with complaint of High Blood Pressure and occasional pain and numbness in right arm. After examination, it was found that his Blood Pressure was 160/106 in the left arm and in the right arm pulse was feeble. Medical bill was submitted by the complainant for reimbursement and as per the medical bills submitted by the complainant, Embolectomy was conducted on 2.3.2010 by OP No. 2 and on 6.3.2010, endorsement was made for referring the patient to Fortis Hospital, Mohali. Complainant had submitted a bill of Rs. 70,380/-, out of that a sum of Rs. 69,692/- was reimbursed to the complainant and he was under treatment with Dr. Ravul Jindal of Fortis Hospital, Mohali as per the bills submitted by him. The complaint was without merit against this Op and the same be dismissed.

5.                OP Nos. 7 & 8 in their written reply have taken the legal objections that there was no deficiency in services on the part of OP Nos. 1 to 3. Dr. Professional Indemnity (Medical Establishment) Policy No. 200400/46/09/32/00000076 w.e.f. 9.5.2009 to 8.5.2010 was issued to Op No. 1. To indemnify the insured regarding the legal liability/award/order, which is to be passed against insured and has been satisfied by the insured. Since no award/liability/award/order has been passed against Op Nos. 1 to 3 in favour of the complainant, therefore, insurance company cannot be impleaded as a party at this stage. The insured had not violated the terms and conditions of the policy. Complaint was without merit against this OP, it be dismissed.

6.                Op No. 9 in its reply had taken the preliminary objections that this Op did his MBBS from Punjabi University, Patiala in 1985 and was Silver and Gold Medalist of the University. Then he did his MS in General Surgery in the year 1989. He did his M.Ch. Cardiothoracic and Vascular Surgery from PGI in the year 1992 and was having 17 years post graduation qualification and experience in Cardiothoracic and Vascular Surgery independently with 99% success rate. He also served in Institute of Cardiovascular Diseases, Madras Medical Mission, Chennai from January, 1993 to May, 1996 and after that joined as Staff Cardiac Surgeon under the leadership of Padamshree Dr. K.M. Cherian worked in Apollo Hospital, New Delhi and thereafter travelled in advanced training of Royal College of Austral-Asia in New Zealand and is doing his best as Cardiothoracic Vascular Surgeon. He also served in Delhi Heart Institute and Research Centre, Bathinda being run by OP No. 2 and also served in General Hospital, Chandigarh worked as Senior Resident in Cardiology at Escort Heart Institute, New Delhi. Legal objections were taken that the complainant had not come to the Forum with clean hands and had suppressed the material facts from the Forum; there was no deficiency in services on the part of the OPs. The allegations levelled by the complainant against OP Nos. 1 to 3 and 9 relate to errors of omission and not negligence, otherwise, he was also covered under the insurance policy for the period 19.5.2009 to 18.5.2010 bearing Policy No. 040100/46/09/35/00000795 with OP No. 10. Complainant was stopped by his act and conduct to file this complaint and that the complaint was false, frivolous and vexatious to the knowledge of the complainant, therefore, it be dismissed under the Act. On merits, it was submitted that Embolectomy of the complainant was done in OP No. 1 on 2.3.2010 by this Op and not by Op Nos. 2 & 3 to which the complainant was aware and it was explained to the complainant and its attendants that it was being done to save the hand from worsening and possible loss as the fingers had already become blue due to clotting of blood and decreased supply to fingers. It was denied that ill affects of Embolectomy were not explained to the complainant. It was denied that Embolectomy had failed and Thrombus was not removed. The complainant was referred to Dr. Ravul Jindal of Fortis Hospital, Mohali on his request for further management. They did not done any Embolectomy as it was done by this Op and they had prescribed only the medicines. The numbness indicated decreased blood supply to nerve and possible nerve injury at the time of admission to hospital. This could very well be the cause of disability. No merit in the complaint and it be dismissed.

7.                Whereas Op Nos. 4 & 10 were ex-parte and name of Op No. 5 was deleted from the array of the opposite parties.

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

9.                In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, list of approved hospitals Ex. C-2, prescription slips Exs. C-3 & 4, summary Ex. C-5, prescription slip Ex. C-6, reports Exs. C-7 to 10, ECG report Ex. C-11, prescription slip Ex. C-12, report Exs. C-13 & 14, prescription slip Ex. C-15, reports Exs. C-16 to 18, prescription slips Exs. C-19 & 20, reports Exs. C-21 to 24, prescription Ex. C-25, reports Exs. C-26 to 39, doctor notes Ex. C-40, reports Exs. C-41 & 42, discharge summary Ex. C-43, certificate Ex. C-44, bills Exs. C-45 & 46, disabilities certificate Ex. C-47, doctor notes Exs. C-48 to 57, prescription slip Ex. C-58, payment receipt Ex. C-59, retail invoice Exs. C-60 to 68, payment receipts Exs. C-69 & 70, retail invoice Exs. C-70-A to C-77, bill cum receipts Exs. C-78 to 80, retail invoice Ex. C-81, cash memo Ex. C-82, receipt Ex. C-83, cash memo Ex. C-84, receipt Ex. C-85, prescriptions Exs. C-85A to 95, registration form Ex. C-96, ICCU Treatment Exs. C-97 to C-112, affidavit of Sukhvir Singh Ex. C-113, affidavit of Jasvir Singh Ex. C-114. On the other hand, opposite parties No. 1 to 3 had tendered into evidence copy of insurance policy Ex. R-1, information of Dr. H.S. Pannu Ex. R-2, affidavit of Dr. H.S. Pannu Ex. R-3, insurance cover note Ex. R-4. OP Nos. 1-3 & 9 had further tendered into evidence affidavit of Naresh Goyal Ex. R-7, affidavit of Dr. K.K. Bansal Ex. R-8, informed consent Ex. R-9, informed consent Ex. R-10.

10.              After going through the allegations in the complaint, written replies filed by the various OPs, evidence and documents brought on the record, the learned District Forum dismissed the complaint on the grounds that Embolectomy was conducted by Dr. H.S. Pannu OP No. 9, who is Vascular Surgeon who was competent to conduct the said surgery. It was required according to the normal medical standards in view of Thrombus appeared in the right arm of the complainant. There was no expert opinion that Embolectomy conducted by the Op was a failure or was not required. Lateron in case the Fortis Hospital had prescribed only the medicines and did not conduct any surgery, it may not have been required as already Embolectomy was conducted with OP Nos. 1 to 3. At the most it can be error of judgment, in case the complainant had not immediately received any relief and error of judgment does not amount to negligence.

11.              The counsel for the complainant in the appeal has contended that respondent No. 2 had attempted Embolectomy upon the complainant and his condition had worsened and lateron he was referred to Fortis Hospital, Mohali. Otherwise Op No. 2 was not competent because he was not a Cardio Vascular Surgeon. It has been stated that the learned District Forum had wrongly observed that the Embolectomy was conducted by Dr. H.S. Pannu. Dr. H.S. Pannu has been impleaded as a party OP No. 9 and he has filed his written reply as well as affidavit that he had conducted Embolectomy upon the complainant and not by Op Nos. 2 & 3 because they were not competent having requisite qualification. He has referred above in his written reply to which he did not challenge but counsel for the complainant simply challenged that Ops had taken the plea that surgery was conducted by Dr. H.S. Pannu as an afterthought.  

12.              Before conducting the Embolectomy, the report was taken in which Thrombus was referred as per Ex. C-2 and Ex. C-58. Embolectomy was best way for removal of the Thrombus. Ex. C-58 proves that Embolectomy was done and that is a note written by Dr. H.S. Pannu referring the patient to Dr. Ravul Jindal, Fortis Hospital, Mohali/Hero D.M.C. & Hospital, Ludhiana to the Vascular Surgeon for further management. Then there are prescription slips by Dr. H.S. Pannu Ex. C-85, 86, 87, 88, 89, 90, 91, 92, 93, 94 which also shows that the patient remained under the treatment of Dr. H.S. Pannu. Again there are notes by Dr. H.S. Pannu dated 2.3.2010 on the date of operation of Embolectomy was done (Ex. R-1), merely because of the fact that in the Informed Consent, the signature of Dr. H.S. Pannu were not there does not mean that he was not associated in the operation of the complainant. Rather in the consent letters Ex. R-9 & Ex. R-10, he has authorised Dr. H.S. Pannu to conduct the Embolectomy and in case in the name of Doctor, below the form, the name and the signature of Dr. H.S. Pannu not there, any Doctor of the Hospital could sign on behalf of the Doctor. Therefore, on the basis of record, we do not agree with the arguments raised by the counsel for the complainant that the operation was not conducted by Dr. H.S. Pannu, rather, it was conducted by OP Nos. 2 & 3 whereas the record shows that it was done by Dr. H.S. Pannu, who is Vascular Surgeon and competent to conduct these type of operations and have done these type of operations in thousands, therefore, we do not subscribe to the arguments raised by the counsel for the appellant that the operation was not conducted by a competent Doctor.    

13.              The next question raised by the counsel for the appellant is that no operation was conducted in Fortis Hospital and they had treated the patient only on the basis of medicines and that said operation was not required. CT report conducted in the
Fortis Hospital is as under:-

“The right subclavian artery appears normal. There are few irregular soft plaques/embolus in the right proximal right brachial artery resulting insignificant stenosis (approx. 80 to 90%). There is complete occlusion of the right brachial artery just distal to it.

There is poor suboptimal contrast opacification of the right distal brachial and the right radial and ulnar arteries.

Impressions:-

Significant stenosis in the left proximal right brachial artery and its complete occlusion distal to it.”

and diagnosis as per the discharge summary Ex. C-43, which is as under:-

“Peripheal vascular disease (rt. Upper limb thrombosis in subclavian artery).”

14.              In case the Fortis Hospital has treated the patient only with medicines, it may be perhaps that Embolectomy was already done but the counsel for the appellant was unable to prove this fact on the record that in view of the disease being faced by the complainant Embolectomy was not the correct procedure. In case the Doctor treated the patient according to standard medical terms, it is different matter whether the treatment is positive or not because no Doctor treat with guarantee that the treatment given by him will be 100% success. At the most, it can be an error of judgment and even error of judgment cannot be categorised as the case of medical negligence, therefore, the procedure adopted by the Ops was correct and it cannot be said that they were negligent in adopting the proper procedure for the treatment given to the complainant.

15.              The next plea taken by the complainant is that it took five days in performing Embolectomy. No doubt that the patient had reported the hospital on 26.2.2010 and on 27.2.2010, peripheral angiography was done, which revealed Thrombus and other tests like ECG etc. were conducted and some medicines were prescribed on 28.2.2010. Some blood tests were taken on 28.2.2010 and Bio-Chemistry test was done on 1.3.2010 and on 2.3.2010, the operation was conducted, therefore, before conducting the operation, some other related tests were required to be done, which were conducted before going to the operation to check it that there may not be any other complication during the process of the operation. Therefore, we are of the opinion that there was no delay on the part of the Ops to undergo the Embolectomy. The delay was due to other related tests and there is no opinion that there was any aggravation to the problem of the complainant on account of some delay in conducting the Embolectomy.

16.              The next point taken by the complainant is that Informed Consent of the complainant was not taken and its implication were not intimated to the complainant or the attendants. In case we go through the consent form placed on the record as Exs. R-9 and R-10 revealed that it is signed by Balkar Singh relative of the complainant and it is incorporated in these consent form that it has been made understand that during the operation or after the operation, there can be complication and other surgery may be possible or that the Doctor could do whatever is necessary for the safety of the patient. It is duly signed by Balkar Singh in English, which shows that he is an educated person and has understood the complication of the operation and once the consent has been given with these understandings, lateron the complainant cannot take any plea that the complications of the operation were not made understand to the complainant.

17.              Counsel for the complainant contended that the District Forum did not obtain the expert opinion before coming to the conclusion that the Ops were not negligent in performing the operation. On that point, the counsel for the Ops have referred to the latest judgment of the Hon’ble Supreme Court 2010(4) CLT 256 “V. Kishan Rao versus Nikhil Super Speciality Hospital & Anr.”. It was held by the Hon’ble Apex Court that forming an opinion by Fora whether expert evidence is necessary, before that the Fora must come to the conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the Fora without the assistance of the expert opinion. Here is the case of Embolectomy. It is to be decided whether it is to be done by competent person or whether in view of foregoing findings, it has been observed that the operation was done by Dr. H.S. Pannu, who was competent to perform the surgery. The complainant neither in his complaint nor in the grounds of appeal has stated that Embolectomy done was not the correct procedure for treating the Thrombus. In those circumstances, the expert opinion was not required. Moreover, the complainant could examine any expert in his favour that the procedure followed by the Ops was not correct but no such evidence has been produced by the complainant.

18.              No other point has been argued.

19.              We are of the opinion that the findings so recorded by the learned District Forum are correct findings. We affirm the same. No case is made out for any medical negligence against the Ops.

20.              In view of the above, we do not find any merit in the appeal and the same is dismissed being without any merit. No order as to costs.

21.              The arguments in this appeal were heard on 27.1.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

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

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

                                                                        

February 9, 2015.                                                                                                                                                            (Jasbir Singh Gill)

as                                                                                                                                                                                        Member