Haryana

Karnal

CC/52/2017

Smt. Karnailo - Complainant(s)

Versus

New Apollo Hospital - Opp.Party(s)

R.K. Sharma

15 Oct 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                      Complaint No.52 of 2017

                                                      Date of instt. 06.02.2017

                                                      Date of decision 15.10.2018

 

Smt. Karnailo wife of Shri Jagpal, aged 35 years, resident of village Taprana, Tehsil and District Karnal                                                                                                                                                                                                                   …….Complainant       

                                                Versus

 

New Apollo Hospital, Sector-13, Urban Estate, Karnal through Dr. Alok Sharma.

                                                                        …..Opposite Party.

 

           Complaint u/s 12 of the Consumer Protection Act.            

 

Before   Sh. Jaswant Singh……President.

      Sh. Vineet Kaushik………Member

              Dr. Rekha Chaudhary……Member

 

 Present   Shri R.K. Sharma Advocate for complainant.

                 Shri Rajiv Gupta Advocate for OP.

               

ORDER:   

                (JASWANT SINGH, PRESIDENT)                

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that complainant went to the OP for treatment of pain in the abdomen. She was checked by Dr. Alok Sharma and found stones in her gall bladder and the operation of gall bladder will have to be done to remove the stones. She was admitted in the hospital in the month of November 2016. OP conducted many tests and after conducting the tests, the complainant was operated to remove the stones in the gall bladder. The gall bladder of the complainant was removed in the operations and she remained admitted in the hospital about 2-3 days. After discharge complainant went to house but found that the blood was leaking and the bag attached for collection was filled with blood due to leakage. The complainant told the fact of leakage of blood in the abdomen. The complainant also informed that there was swelling in the abdomen as well as she was feeling problem in the respiration. However, the doctor in the New Apollo Hospital, Karnal did not inform the complainant about the cause of leakage of blood in the bag as well as the problem of swelling and respiration. The complainant stressed the doctor to inform the reason of the said problem and then the doctor informed that there was some mild infection in the intestines due to which the patient was facing the problems. The doctor could not properly diagnose the problem of the complainant and was referred to Sarvodya Multispecialty Hospital, Karnal. Dr. Ajay Gupta checked the complainant and opined that “Post Cholecystectomy bile leak abdominal collection on andobiliary stent, Dr. Ajay Gupta found the matter to be of serious nature and advised evaluation and management at Higher Centre PGI, Chandigarh in view of stent drainage.”  However, OP did not inform this fact to the complainant. The complainant was sent to Bharat x-ray and Ultrasound Clinic by the OP and x-ray of abdomen for locating biliary stent along the T-12 to L-3 vertbrae on right side with both its end curled up. The report was shown to the OP but the OP failed to give any treatment to the complainant to stop the leakage of blood from the abdomen. It is further alleged that the problem of respiration and abdominal pain went on increasing day by day and bleeding also continuing. The complainant went to Miglani Nursing Home, Karnal for check up on 17.12.2016. Dr. O.P. Miglani refused to treat the complainant due to serious complication in the abdomen. However, the C.T. Scan was advised by Dr.O.P.Miglani on 17.12.2016. The C.T. Scan of complainant was done on 18.12.2016 at Archna Diagnostic Centre, Panipat. The C.T. Scan upper abdomen was made and it was opined in the form of impression as under:-

        “Post-cholecystectomy patient with biliary leak with ERCP and CBD stenting done, Present CT Scan shows multiple large poorly defined? Intercommunicating air containing fluid collections in the retroperitoneum as described likely secondary to duodenal perforation with superadded acute pancreatitis.”

The sufferings of the complainant were increasing day by day, complainant went to PGI, Chandigarh for her treatment. She was admitted on 20.12.2016 and were discharged on 27.12.2016. The provisional diagnosis at PGI revealed that it was a case of post operation cholecystectomy biliary injury+ERCP stenting. The complainant is undergoing the treatment by Doctors at PGI. However, her condition has not improved till today. She has been reduced to a Skelton. The leakage of blood from abdomen has also not stopped. The complainant is also facing the respiratory problem. The complainant goes to PGI, Chandigarh every week but the chances of improvement are very oblique. The sufferings of the complainant started from the day of operation of gall bladder conducted by the OP. The perusal of x-rays shows that while the stent was installed after the removal of gall bladder, a wrong cut was made in the instestines and this fact is the cause of leakage of blood from the abdomen and the doctors at the PGI are unable to control the leakage of blood from the abdomen of the complainant. OP did not take the necessary precautions and acted in a negligent manner while conducting the operation of the complainant and also concealed the fact of omission committed while operating the complainant. It is further alleged that OP charged a sum of Rs.40,000/- from the complainant at the time of operation. Complainant paid Rs.10,000/- to the OP when the complainant was taken by the OP for treatment to Dr. Ajay Gupta of Sarvodya Multispecialty Hospital, Karnal. Complainant has spent about Rs.1,30,000/- for her treatment from PGI, Chandigarh and for the medicines and other equipment for treatment purchased from the market as per the advice of the doctors of PGI, Chandigarh and other doctors. Due to abovesaid act and conduct of the OP complainant suffered a lot of sufferings, mental tension, pain and agony apart from financial loss. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to OP, who appeared and filed written version raising preliminary objections with regard to concealment of true and material facts; complaint of the complainant is false, frivolous and vexatious and there is no evidence on the part of  the OP. On merits, it is pleaded that complainant was not checked by Dr. Alok Sharma rather she was checked by Dr. Kamal Bhushan Jain M.B.B.S. M.S. (General Surgeon) and she came in the hospital on 22.11.2016 at 1.30 p.m. and there is stone in the gall bladder of complainant and the stone cannot be removed from gall bladder and with the consent of the complainant and her family members, gall bladder of the complainant was removed and she remained admitted in the hospital upto 26.11.2016 and she was discharged on 26.11.2016 in the evening with the advice for bed rest and she again came on 30.11.2016 in the morning and she was checked by Dr. Kamal Bhushan Jain and she was advised for ultrasound and in the ultrasound it was found that there is a fluid in the drain about 70/80 ml and after seeing the ultrasound Dr. Kamal Bhushan Jain advised for expert opinion from higher centre and also for ERCP and she was satisfied at that time and from 23.11.2016 till discharged of the complainant there was no problem and if there is a fluid in the drain there is the treatment of placing of stent and she was advised for ERCP for higher centre and there was no blood leakage of the complainant and a false story is made in complaint. It is further pleaded that OP never referred the complainant to Dr. Ajay Gupta for further treatment rather she was advised for ERCP in higher centre and the complainant herself obtained the treatment from Dr. Ajay Gupta and she has not disclosed in the complaint how many days she remained admitted in the hospital of Dr. Ajay Gupta and the ultrasound report was obtained o n 30.11.2016 by Dr. Kamal Bhushan Jain from Bharat x-ray and ultrasound of the complainant and after seeing the said report she was referred for higher hospital and she was discharged on the same day and after 30.11.2016 complainant never visited with the hospital of the OP and the complainant also not supplied the documents to the OP. It is further pleaded that OP never placed any stent and OP advised the complainant for taking expert opinion from higher institute but she was failed to obtain the expert opinion from higher institute. The complainant never visited in the hospital of the OP after 30.11.2016 and it was the duty of the complainant to take precaution after the operation and when she was discharged on 26.11.2016 she was advised for bed rest. It is further pleaded that no stent was installed by the OP after removing the gall bladder and a false story is made out. OP has charged only Rs.15,000/- from the complainant for operation of gall bladder and the OP never charged Rs.40,000/- from the complainant and the OP never charged Rs.10,000/- for giving the treatment through Dr. Ajay Gupta. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Complainant tendered into evidence her affidavit Ex.CA, affidavit of Devi Chand Ex.CB and documents Ex.C1 to Ex.C68 and closed the evidence on 13.10.2017.

4.             On the other hand, OP tendered into evidence affidavit of Dr. Kamal Bhushan Jain Ex.RW1/A and documents Ex.R1 to Ex.R15 and closed the evidence on 12.06.2018.

5.             We have heard the learned counsel for both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

6.             The pivotal issue in this case is as to whether there was any kind of medical negligence on the part of Dr. Alok Sharma or not?

7.             The learned counsel for the complainant argued that due to abdomen pain complainant admitted in the hospital of OP. The gall bladder was removed by the OP due to stone. She was discharged from the hospital on 26.11.2016. Due to leakage of blood and swelling in the abdomen she again approached the OP but OP not properly diagnoses the problem of the complainant. The complainant was referred to Sarvodya Multi Specialty Hospital, Karnal where she was treated by Dr. Alok Gupta. Thereafter, she was treated by Dr.O.P. Miglani at Miglani Hospital, Karnal. The ultrasound and x-ray was also conducted during treatment. OP gave pain killer etc. But the suffering of the complainant was increasing day to day, complainant went to PGI for her treatment. The record of PGI reveals that it was a case of post operation cholecystecotomy biliary injury plus ERPC stenting. The perusal of x-ray show that  stent was installed after the removal of gall bladder, a wrong cut was made in the intestines and this fact was cause of the leakage of blood from abdomen of the complainant. OP did not take the necessary precautions and acted in a negligent manner while conducting the operation and installed the stent of the complainant and also concealed the fact of the omission committed while operating the complainant and prayed for compensation. Learned counsel produced the authorities of Hon’ble National Commission in Revision Petition no.57 of 2015, date of decision 1.9.2015 case titled as Jyoti Devi Veruss Suketh Hospital & Others; Revision Petition no.1921 of 2005, date of decision 28.02.2009 case titled as Holi Cross Hospital Versus Maniram and 2008(2) CPR 327 (NC) case titled as Rohini Hospital and Anr. Versus P.Shashikala and ors.

8.             On the other hand, counsel for the OP argued that while discharging the complainant from the hospital, she was advised for complete bed rest, but complainant did not follow the instructions of the concerned doctor. On the advise of the concerned doctor, ultrasound was conducted by Dr.Kamal Bhushan Jain, and doctor advised the complainant for ERCP. Dr. Ajay Gupta placed the stent on 30.11.2016 vide document Ex.R14 and consent for ERCP Ex.R15. The complainant was operated by Dr. Kamal Bhushan Jain not by Dr. Alok Sharma. The complainant has not impleaded Dr.Ajay Gupta as a party, who placed the stent. Complainant has not examined any expert for proving the alleged negligence of the OP, as opinion of a panel of experts is required for proving the negligence of the doctor and prayed for dismissal of the complaint with costs.

9.             In a case of medical negligence, what is expected of a doctor is ordinary skill, care and expertise and not an extraordinary or super human skill, judgment or expertise. Simply, because a mishap had occurred, neither the hospital nor the doctors can be made liable. A doctor is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art. A doctor or a hospital is expected to take reasonable care in administration f the treatment. What is the duty of a doctor is to take care and caution while giving the treatment as per the established medical practice. If he has acted in the said manner, no question of deficiency would arise.

10.           In Jacob Mathew Versus State of Punjab and another III(2005) CPJ 9 SC. Hon’ble Supreme Court held as under:-

        “18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the profession can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates Versus J.D.Williams & Co. Ltd., Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. 

11.           In Bolam Versus Friern Hospital Management Committee, 1957 I WLR 582=(1957) 2. All.ER 118 (Queen’s Bench Division-Lord Justice McNair observed.

7. “(i) a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merely because there is a body of such opinion that takes a contrary view. The direction that, where there are two different schools of medical practice, both having recognition among practitioners, it is not negligent for a practitioner to follow one in preference to the other accords also with American law; See 70 Corpus Juris Secundum (1951) 952, 953, Para 44. Moreover, it seems that by American law a failure to warn the patient of dangers of treatment is not, of itself, negligence ibid. 971, para 48).

8. Lord justice McNair also observed: Before I turn that, I must explain what in law we mean by “negligence”. In the ordinary case which does not involve any special skill, negligence in law means this: some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action. Howe do you test whether this act or failure is negligent? In an ordinary case, it is generally said that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test 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 man exercising an professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

12.           In cases of medical negligence, opinion of Medical Board carries value. In this case, complainant has failed to produce expert opinion regarding negligence of the OP. According to the complainant, stent was installed by OP, whereas as per document Ex.R14 and Ex.R15, stent was installed by Dr. Ajay Gupta, in this regard Dr. Narender Kumar Sarvodya Hospital Karnal has got recorded his statement on 12.06.2018. Meaning thereby, the stent was not installed by the OP. Except complainant version, there is no other evidence to prove the medical negligence of the OP. In view of this, it is unhesitatingly held that there was no medical negligence on the part of Dr. Alok Sharma of New Apollo Hospital, Karnal.

13.           Thus, as a sequel to above discussion, we find no merits in the complaint and the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 15.10.2018

                                                                        President,

                                                           District Consumer Disputes

                                                           Redressal Forum, Karnal.

 

 

                     (Vineet Kaushik)     (Dr. Rekha Chaudhary) 

                        Member                       Member