Sh.Nirbho Singh complainant has filed this complaint U/s 12 of the Consumer Protection Act of 1986 against the opposite parties praying that opposite parties be directed to pay Rs.15,00,000/- for the negligence due to which he has suffered lot of harassment including medical and litigation expenses, in the interest of justice.

2. The case of the complainant in brief is that he approached the OP No.1 in the month of November 2010, which is being run by OP No.2, due to non-functioning of his right Kidney and he was checked by OP No.2 and advised him that OP No.3 i.e. Dr. Navin Dhir is Surgical Specialist and he is most famous Doctor in Punjab and he will be called at his hospital and surgery will be done in Public Hospital. On the assurance of OP No.2 he got himself admitted in above said Hospital and his surgery/Nephrecotomy was done by OP No.3 i.e. Dr. Navin Dhir on 12-11-2010 and he remained admitted in hospital from 12-11-2010 to 30-11-2010 and as per OP’s his right kidney was removed and they assured that he will not suffer any problem in future. The opposite party no.2 and 3 charged Rs.40,500/- on date of discharge and during the period of his admission the complainant also spent more than rupees 30,000/- on medicine. He has further pleaded that after about 8-9 months he suffered problem of storing of water in his abdomen and he felt pain due to storage of water in his abdomen. When he approached the OP No.2 and informed him regarding his problem the OP no.2 advised the complainant to approach Dr.Navin Dhir at Amritsar where OP No.3 is running his own hospital. He got the stored water removed from OP No.3 about four times and every time he had to spent Rs.10,000/- as fees, transportation and Medicines etc., but of no use as the problem remained uncured. He has next pleaded that he also approached number of time to OP No.2 and also remained admitted in Public Hospital i.e. OP NO.1 from 28-02-11 to 02-03-11 under supervision of OP No.2 regarding same problem but he issued a wrong certificate cum slip and mentioned in that as he was suffering from P.I.V.D. and was advised regular rest and treatment for a month and after re-examination he was declared fit on 3.4.2011 by OP No.2 and not mentioned about his real problem and his problem remained uncured. When the abovesaid problem was not cured by OP no.2 and 3 for long time they advised him to undergo a minor operation through Microscopes as they said that a Vein is to be blocked and again operation was done by OP no.3 at Naveen Hospital, Amritsar which is being run by OP no.3 on 7.09.2012 and he remained admitted there till 17.09.2012 and spent more than one lac rupees during this period for operation and medicines etc. The OP no.3 even removed his Naval and a new problem of Urine blockage started for which he visited by hiring Taxi to Amritsar for 3-4 times and every time he had to spend Rs.5000/- Rs.6,000/- but problem remained uncured as problem of storing water in abdomen remained there rather blockage of Urine started also. He remained under great physical and mental pain and suffered it for a long time. Ultimately when the problems were not being cured by OP No.3 a Scan of his abdomen was done on 21.11.2013 was done by Dhillon, M.R.I. Scan Centre Amritsar and it was revealed that his Right Kidney was not properly removed by the OP No.3 when he was operated first time and after seeing his report the OP No.3 refused to admit him, then he went to Kidney Hospital Jalandhar and scanning was again done by S.G.L. Super Specialty Hospital, Jalandhar on 3.12.2013 and report shows that Right Kidney is there and they also refused to admit him on the ground that case has been turned very critical and they advised him to get surgery from PGI, Chandigarh. He again approached the OP No.3 and shown him his reports and after seeing them OP no.3 admitted his fault and felt sorry and refused to admit him in his hospital. Again a Scan dated 14.12.2013 was also done by Randhawa Ultrasound Centre, Amritsar and report regarding the Right Kidney was done. He has further pleaded that he got himself admitted in Asia Surgical Centre & Hospital, Amritsar and on 26.3.2014 and his more scanning was done by Nijjar Scan & Diagnostic Centre, Amritsar which also shows his Right Kidney, which was allegedly removed by the OP No.3 at the time of first operation done by OP No.3 at Public Hospital i.e. OP No.1. Then his operation was done on 27.3.2014 at Asia Surgical Centre & Hospital and he was discharged on 5.4.2014 and he spent about Rs.60,000/- again on operation and medicines etc. He has next pleaded that he was operated three times due to negligence of OP No.2 and OP No.3 who failed to remove the right kidney properly in first operation and this fact was revealed only on 21.11.2013 when his scan was done by Dhillon Scan Centre and due to negligence of OP No.3 he suffered a lot physically and mentally and spent lacs of rupees on his treatment and he has also undergone a mental and physical pain which cannot be measured in terms of money. Hence this complaint.

3. Notice of the complaint was issued to opposite parties. Opposite parties no.1 to 3 has appeared and filed their joint written reply by taking the preliminary objections that the present complaint is not maintainable in the present form and the same is liable to be dismissed; prior to be filing of the complaint no opinion of the expert has been taken or placed on record, so the present complaint of medical negligence is not maintainable; the complainant has concealed true and material facts from this Hon’ble Forum and weaved a concocted story, just to gain wrongfully from the answering opposite party; the complaint is false, malicious and incorrect and an abuse of the process of law; the complaint is bad for mis-joinder and non-joinder of party. The complainant was having mediclaim policy via department and all his bill etc. were settled through insurance company. The complainant has deliberately not arrayed them as a necessary party and the complaint if hopelessly time barred the surgery of the complainant was conducted on 12.11.2010 and he was discharged from the hospital on 30.11.2010 but the present complaint has been filed after the gap of more than 3 and half year, so the complaint was liable to be dismissed on this ground itself. On merits, it was submitted that he was treated for his ailment. The complainant was suffering from P.I.V.D. and he was given proper treatment by the opposite party. It was strongly denied that the opposite party issued wrong certificate cum slip and mentioned that the complainant was suffering from P.I.V.D. The complainant has deliberately and intentionally without iota of truth has alleged false and frivolous allegation against the opposite party and opposite party reverse their right to initiate defamatory legal proceedings against the complainant under relevant sections of Law. Actually, his sonography was conducted and no cystic collection was present in right renal fossa at the time of Laparotomy for obstruction. His naval was removed as a part of incision for adequate exposure of intestine. It was correct that he was treated for intestinal obstruction. The intestinal obstruction was due to adhesion in the lower abdomen for which he presented to us with pain vomiting and distention abdomen for which he was operated upon and later discharged in Good condition after 10 days. This ailment of the complainant has also got no connection whatsoever with surgery conducted in year 2010. It was also correct that the M.R.I. of the complainant was conducted but it was denied that the surgery of Nephrectomy of the complainant was not done properly by the opposite party no.3.Actually, at the time of surgery on table there were lot of adhesions and inflammation and kidney was exposed with a lot of difficulties and in the meantime in due course of surgery he went into shock due to bleeding and oozing in the perinephric area he was revived and kidney was removed but a part of pelvis could not be removed due to excessive adhesions and inflammation and risk of excessive bleeding. Had the opposite party gone for pelvic removal complainant would have lost his life due to excessive bleeding or would have suffered complications like bowel injury. The opposite party with due diligence and with best judgment has operated the complainant and saved his life. The surgical steps taken by the opposite party was the best as any surgeon operating would have taken in such a situation. The first and foremost duty of a doctor is to save the life of the patient and opposite party has performed his duty with excellence. Infact, the attendant were explained and shown the bad shape of kidney and ozzy raw surface and bleeding and were told to save the life of patient and it was not medically possible to remove the pelvis. He remained fit and fine after the surgery and he was performing his duty with ease and comfort. When he presented to opposite party for surgery of intestinal obstruction there was no collection in right renal fossa and later on a new problem arises when a stone formed in remnant pelvis and it obstructed the flow of urine via uretear into bladder, this small amount of urine was forming from the little renal parenchyma attached to pelvis. The complainant was explained all the conditions in simple language and he was thankful and satisfied with the efforts of the opposite parties. It was also submitted that when in month of November 2013 and complained about discomfort in right flank his CT Scan was done which showed hydronephrotic right kidney due to PUJ obstruction and Lithia sis which is actually the dilated pelvis which was left in order to save the life of complainant and the pelvis was not at all harmful for the health of complainant and the opposite party advised him to get admitted and his problem will be sorted out but he did not turned up. All other averments made in the complaint have been denied and lastly the complaint has been prayed to dismiss with costs.

4. Opposite party 4 has appeared and filed its written reply by taking the preliminary objections that the present complaint is not maintainable against opposite party no.4 as the insured hospital opposite party no.1, has not complied with the terms and conditions of the policy of insurance. In that insured was required to inform the opposite party regarding the complaint as soon as the complaint was filed against it by the complainant. Since it is a violation of terms and conditions of the policy of insurance, the opposite party no.4 is not liable to indemnify the opposite party no.1 and the policy of insurance has not been made available or filed by the insured hospital, the opposite party reserves the right to amend the written statement if so required after examining the policy once it is produced by the insured hospital. Lastly, it is prayed that complaint is without merit, the same may kindly be dismissed.

5. Complainant tendered into evidence his own affidavit Ex.CW1/A, alongwith other documents Ex.C1 to Ex.C40 and closed the evidence.

6. Dr.Navin Dhir has appeared on behalf of opposite parties No.1 to 3 and tendered into evidence his own affidavit Ex.OP3/27 and Ex.OP3/28, alongwith other documents Ex.OP-1/1 to Ex.OP-3/26 and Ex.OP-3/29 and closed the evidence.

7. Sh.Sham Lal, Branch Manager of N.I.C has tendered into evidence his own affidavit Ex.OP4/1 alongwith other document Ex.OP-4/2 and closed the evidence.

8. We find that the complainant did repose his full ‘faith’ in the OP doctors and presented himself rather surrendered to receive medical treatment under the ‘belief’ that he shall be receiving an optimally ‘best’ or at least ‘reasonably’ good and modern ‘medical-treatment’ at the OP1 Hospital operating in his own village. It was, however, for the OP doctors to have valued, reciprocated and displayed the complainant’s ‘reposition’ through an appropriate exercise and sincerest open exhibit of care, caution and expertise. We are strengthened in our above legal proposition by virtue of the honorable apex court verdict in civil appeal # 3541/ 2002 titled Martin F. D’ Souza vs. Mohd. Ishfaq wherein the BOLAM Rule gets highlighted under the paragraph 38 as: The basic principal relating to negligence is known as the BOLAM Rule. This was laid down in the judgment of Justice McNair in Bolam Vs Friern Hospital Management Committee (1957)1 WLR 582 as follows: “Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill …… It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.” The Bolam’s test has been approved by the Supreme Court in Jacob Mathew’s case, also. Further, the paragraph 39 reads as: In Halsbury’s Laws of England the degree of skill and care required by a medical practitioner is stated as follows: “The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care ….. So on ….. with ordinary care.” (Emphasis supplied). Again, paragraph 43: It is not enough ….. “….. with ordinary care ….”.

9. We find that the complainant was hospitalized at OP1 Hospital from 12.11.2010 to 30.11.2010 for ‘nephrectomy’ surgery but no pre-operative tests/ investigations, ultra-son- graphs, MI scans etc have been produced (neither pleaded to have conducted) by the OP doctors that were necessary to know the pre-operative physical situations and to decide whether the then proposed major ‘surgery’ could be conducted in the OT (operation theatre) of an insignificant Hospital in the village. The complainant patient’s innocent ignorance can be well understood but how can a judicial mind tolerate the ‘negligent’ act of the otherwise well qualified practicing doctors who went ahead with the major surgery in a relatively ‘inferior’ OT of a village private Hospital where such a high risk surgery was neither a rarity nor an exception. The OP doctors have admitted in paragraph ‘7’ of the written reply that “at the time of surgery ‘on table’ there were lot of adhesions and inflammation and kidney was exposed with a lot of difficulties and in the meantime he (the patient) went into shock due to bleeding and oozing in the perinepheric area he was revived and kidney was removed but a part of pelvis could not be removed due to excessive adhesions and inflammation and risk of excessive bleeding. Had the Opp. Party gone for pelvic removal complainant would have lost his life due to excessive bleeding or would have suffered complications like bowel injury”. The OP doctors have failed to produce any evidence of pre-operative ‘care and caution’ duly exercised by way of conduct of tests, scans & investigations preceding the surgery so as to avoid complications on the ‘operation table’ during the surgery. Had these pre-operative exercises got conducted the OP doctors would not have ‘adventured’ ahead with the actual ‘surgery’ at the OT of the village Hospital that apparently could not have afforded the OT facility desired for ‘nephrectomy’ surgery with complications. The OP doctors through their negligent ‘act’ had put to ‘risk’ the life of the complainant. Hence, we find the OP doctors negligent and deficient in service right from the beginning and hold them liable to an adverse award under the Act. We have examined the OP4 insurers Indemnity Policy Ex.OP.29 duly purchased by the OP1 Hospital; however the same does not divulge the full ‘inter-se’ insurance arrangement and as such we are not inclined to determine the insurers’ liability to the present award. Moreover, the sharing of the financial liability of the present award can be best settled amongst the insured and the insurers. The present complainant being the prime ‘consumer’ of the first three ‘principal’ service-providers (OP1 to OP3); we shall keep our adjudication directed to these, only.

10. In the light of the all above, we hold the OP2 and OP3 doctors guilty of ‘deficiency in service’ coupled with ‘exploitation’ of the subservient status/ role of the patient complainant and thus ORDER them to pay him Rs.3.0 Lac each as compensation for causing him physical and mental pain besides Rs. 5,000/- each as litigation cost within 30 days of the receipt of the copy of these orders, otherwise the aggregate awarded amount shall become payable with interest @ 9% PA form the date of the filing of complaint till actually paid.

11. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.

                  (Naveen Puri)

                                                                         President.

ANNOUNCED:                                            (Jagdeep Kaur)

August 19,2015.                                                      Member

*MK*