This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 28.5.2012, passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (hereinafter referred as ‘State Commission’) in F.A. No. 226/2011, the Oriental Insurance Company and others vs. Smt. Kaushal Jain, vide which, while allowing the said appeal, the order passed by the District Consumer Disputes Redressal Forum, Ambala dated 28.12.2010, allowing the consumer complaint, was set aside. 2. The facts of this case are that the complainant, Smt. Kaushal Jain suffered from severe stomach pain and went for ultrasound scan of abdomen from Rajeev Ultrasound Centre, Ambala Cantt., from which, it was revealed that she had stones in her gall bladder. The complainant alongwith her husband Modi Kumar Jain went to OP-1/Respondent no.2, Dr. Jatinder Gupta of Gupta Hospital, Ambala Cantt. on 1.12.1997, where she was subjected to medical examination involving several diagnostic tests. The complainant was admitted in his Hospital on the next day i.e. 2.12.1997 at 7 a.m. and laparoscopic cholecystectomy was performed on her. It is stated that the operation lasted a long time of four hours and the complainant remained unconscious, following the surgery. Her condition further deteriorated and ultimately, she developed jaundice. It is the case of the complainant that her condition worsened, because of the surgery having been done in a wrongful manner by the OP-1 doctor. On 9.12.1997 morning, the complainant was taken to the Apollo Hospital, New Delhi, where she was allegedly told that the complications had been caused due to gross negligence during the laparoscopic surgery at Ambala. Another surgery was performed upon the patient at the Apollo Hospital called ‘Hepatic Jejunostomy’. The complainant filed the consumer complaint in question, saying that Dr. Jitender Gupta, OP-1/Respondent no.2 had acted grossly in an unethical and negligent manner, in performing laparoscopic surgery upon her and she sought directions for payment of Rs.2,32,325/- as compensation to her, alongwith interest @ 15% per annum from the date of filing the petition and Rs.5,000/- as cost of litigation. 3. In the said complaint, the Oriental Insurance Company has been named as OP-2/Respondent no.1, because the doctor had obtained some insurance policy from the said company for indemnifying him. 4. In his reply filed before the District Forum, the OP-1 doctor stated that he was a qualified surgeon, having experience of about 18 years in performing such procedures. He stated that the complainant had regained consciousness in the operation theatre, and thereafter, she was shifted to a private room. Her progress during the post-operative period was satisfactory till 5.12.1997, when a faint tinge of jaundice was noticed by the OP-1, following which, necessary tests for finding out the level of S. Bilirubin were conducted. She was examined by other qualified doctors also, who suggested alternative treatment, besides some investigations. As per the version of the OP-1, the said condition was a known complication of such surgery. A suggestion was made to the husband of the complainant to shift the patient to the PGI Chandigarh, but on his request, the patient was referred to the Apollo Hospital, New Delhi and a detailed discharge summary was given on 8.12.1997. According to the OP-1 doctor, there had been no negligence on his part in performing the procedure and in the management of the patient at his hospital. 5. The OP-2 insurance company also filed their separate written statement, saying that the liability of the insurance company was limited and that too, as per the terms and conditions of the policy. 6. It is the case of the complainant that following the advice of the Apollo Hospital, she was again operated at Bhatia Hospital at Mumbai on 1.6.1999, and further operated at the PGI Chandigarh on 18.6.1999. The complainant sent a letter to the President, District Forum, requesting for taking note of the subsequent events in the case, after filing the consumer complaint in question. She stated that as a result of repeated operations upon her, she suffered from many complications and had to incur lot of expenditure also. 7. The District Forum, after taking into account the averments of the parties, passed their order on 5.3.2003, holding that the Consumer Forum was not a proper place to adjudicate the case, and hence, the complainant should approach the Civil Court , if so advised. Being aggrieved against this order, the complainant filed an appeal before the State Commission, which was decided on 10.4.2009 and the order passed by the District Forum was upheld. Being aggrieved against this order, the complainant challenged the same by way of a revision petition before this Commission, which was decided on 15.9.2009, and the matter was remanded to the District Forum, Ambala for fresh decision. The District Forum decided the mater vide their order dated 28.12.2010, and relying upon the principle of res ipsa loquitur, directed that a sum of Rs.3 lakhs should be paid to the complainant for the amount spent on her treatment including medicines, stay in the hospital, travelling expenses etc. alongwith interest @ 7.5% per annum and Rs.10,000/- as litigation cost. 8. Being aggrieved against this order, the OPs challenged the same by way of an appeal before the State Commission, which was decided vide impugned order dated 28.5.2012. The State Commission allowed the appeal and dismissed the consumer complaint in question. Being aggrieved against the said order, the complainant has filed the revision petition in question before this Commission. During the pendency of the revision petition, the complainant died on 6.10.2014 and her legal heirs including her husband Modi Kumar Jain were substituted on record. 9. On behalf of the petitioners, written arguments have been filed on record, explaining the facts of the case, and stating that there was negligence on the part of the OP-1 doctor in performing surgery upon the patient, which resulted in worsening of her condition in the post-operative period. The level of S. Bilirubin which was indicative of jaundice was found to be much higher than normal, due to negligence in operation performed by the OP doctor. From the discharge summary given by the OP dated 8.12.1997, it was clear that the S. Bilirubin levels were increasing every day for four consecutive dates between 4.12.1997 to 8.12.1997. This should have alerted the OP doctor to observe that there was some obstruction, which was not allowing the normal flow of S. Bilirubin to intestines via the biliary duct i.e. the common bile duct (CBD). As per Endoscopy report of the specialist, Dr. Sanjay Jain, CBD was completely blocked with a staple upon the ampula. The OP doctor could have known about this condition by a simple urine test. However, he erroneously reported the ultrasound scan to be normal. As per the findings given by the Apollo Hospital, it was clear that this was a case of medical negligence on the part of OP-1 doctor. The petitioner stated that both the Common Hepatic Duct (CHD) and CBD were cut by the operating doctor, leading to collection of 5 litres of bile in stomach, which led to obstructive jaundice. The facts were clear from the report given by Dr. S.N. Gupta of the Apollo Hospital on 15.3.1999. The petitioner also stated that the doctor had not obtained the informed consent of the patient in accordance with law laid down by the Hon’ble Supreme Court in the case, Samira Kohli vs. Dr. Prabha Manchanda , 2008(2) SCC 1. 10. During arguments before me, the petitioner Modi Kumar Jain appearing in person, reiterated the points taken in the written arguments, saying that subsequent surgeries had to be performed at the Apollo Hospital and later on, at the hospitals at Mumbai and Chandigarh, because of the medical negligence of the OP-1 doctor. 11. The learned counsel for the insurance company stated that in the order passed by the State Commission, it had been brought out clearly that medical negligence had not been proved on the part of the OP-1 doctor. The said order was in accordance with law and should be upheld. 12. I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me. 13. The main point that merits consideration in the matter is whether there has been medical negligence on the part of the OP-1 doctor in any manner in performing surgery upon the patient. In this regard, the findings recorded in the Discharge Summary of the Apollo Hospital at Delhi, where the patient remained admitted from 9.12.1997 to 19.12.1997 are quite relevant and are re-produced as under:- “Findings of Exploratory Laparotomy Peritonial cavity full of bile (about 5 lires) Proximal and of CHD close to junction was found cut through and through and was clipped and discharging clean bile from medial end. Distal end of CBD had clip on it with a loss of about 2 cm of CBD. Procedure : Roux–En-y hepatic jejunostomy and jejuno-jejunal anastomosis-First loop of jejunum identified divided at 10 cm from DJ proximal end – anastomosed to jejunum – 50 cm distal – end to side. Jejunal loop brought to liver hilium through mesentry hole posterior to transverse colon and anterior to duodenum. Stoma closed and end to side choledochojejunal anastomosis done.” 14. The District Forum in their order dated 28.12.2010, after discussing the above findings in detail, concluded that even if, such type of complication was common in laparoscopic surgery, the doctor was supposed to be vigilant during post-operative care of the patient. As indicated from the tests performed upon her, the instance of jaundice was increasing day by day, as reflected from the tests for S. Bilirubin. It is not clear as to why the doctor was waiting and watching, even though the condition of the patient was deteriorating. The District Forum has rightly observed that the tests conducted at the Apollo Hospital later on, could be conducted by the OP-1 doctor at his own Hospital. The District Forum rightly applied the principle of res ipsa loquitor in the case, because the factum of collection of 5 ltrs. of bile had been fully established in the report of the Apollo Hospital. It had also been reported that there was loss of 2 cms of CBD, although its total length is approximately 3.5 cms. From these findings, it is clear that the doctor was definitely negligent in taking post-operative care of the patient. As per the report dated 15.3.1999 of Dr. S.N. Gupta, Sr. Consultant, Apollo Hospital, she was diagnosed as a case of ‘bile duct injury’. There was free collection of bile in the abdominal cavity with injury to the CHD duct. It is not understood, therefore, that the OP-1 doctor who claims to be well-experienced in such type of procedures, could not assess the condition of the patient and take appropriate action, while she was under his treatment. The subsequent events also show that the complainant again developed lot of complications and she had to undergo treatment at hospitals at Mumbai and PGI Chandigarh. The condition of the patient as recorded in the discharge summary states as follows: “Pt. underwent laparoscopic cholecystectomy in December 1997. Post OP she developed progressively increasing jaundice with abdominal distension, she underwent Hepaticojejunostomy at Apollo Hospital Delhi on 11th post OP day. Thereafter she was asymptomatic for 5 months. In January 1999 she noticed yellowness of sclnae, passage of clay and found to have an anhastomotic stricture. Balloon dilatation was attempted but was not successful. A PTBD was placed. Now the patient has been refd. for definitive surgery.” 15. The subject of medical negligence has been discussed in a number of judgments given by the Hon’ble Supreme Court of India and this Commission from time to time. The Hon’ble Apex Court in their judgement in Kusum Sharma vs. Batra Hospital, 2010(3) SCC 480 laid down some basic principles in dealing with the cases of medical negligence. In another case Jacob Mathew vs. State of Punjab and another 2005(6) SCC 1, the Hon’ble Apex Court noted as follows: “Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property…..the definition involves three constituents of negligence : (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential damage. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort.” 16. The State Commission in the impugned order, while allowing the appeal, observed that merely because the doctor failed to diagnose the disease, it cannot be a case of medical negligence or deficiency in service. This assertion of the State Commission is not tenable, because it has been made amply clear that the doctor failed to assess the condition of the patient properly during the post-operative stage, because of which her condition went on deteriorating. The order passed by the State Commission, therefore does not reflect a correct appreciation of the facts and circumstances on record, whereas the order passed by the District Forum is based on a rational analysis of the material on record. 17. The OP doctor failed to exercise a reasonable degree of skill and care in handling the patient and hence, as per the law laid down by the Hon’ble Supreme Court in the cases cited above, he is clearly guilty of medical negligence. 18. In so far as the issue of obtaining informed consent is concerned, relying upon the order of the Hon’ble Supreme Court in Samira Kohli vs. Dr. Prabha Manchanda (supra), it is made out that the OP doctor is negligent on this ground as well. The OP doctor had not been able to provide any evidence on record, from where it could be concluded that proper informed consent was taken from the patient, before performing the surgery upon her. 19. In the prayer clause in the consumer complaint, the complainant requested for grant of relief of Rs.2,32,325/- as compensation with interest @ 15% per annum from the date of petition till payment of Rs.5,000/- as cost of litigation. However, the District Forum allowed a sum of Rs.3 lakhs to be paid to the complainant, covering the amounts spent on her treatment including medicines, stay in the hospital, travelling expenses etc. The District Forum also allowed Rs.10,000/- as litigation expenses and interest @ 7.5% per annum on the amount of compensation from the date of filing the complaint, till realization. 20. It is evident that the District Forum could not have allowed the compensation more than that demanded in the consumer complaint. The order of the District Forum is therefore modified to say that the petitioner shall be entitled to get compensation of Rs.2,32,325/- as per the prayer in the consumer complaint. However, they shall be entitled to receive interest @ 10% per annum from the date of filing the complaint till realization. In addition, since the litigation has been going on between the parties since a long time, spanning almost about 20 years, it shall be just and proper to grant them litigation cost of Rs.1 lakh in addition to the amount of compensation alongwith interest as indicated above. 21. Based on the foregoing discussion, therefore, this revision petition is allowed and the impugned order passed by the State Commission is set aside. The order passed by the District Forum is modified to say that a sum of Rs.2,32,325/- shall be admissible to the complainant as compensation alongwith interest @ 10% p.a. from the date of filing the complaint till realization plus Rs.1 lakh as litigation expenses. The said amount shall be paid by the OP-1/R-2 Doctor to the complainant within a period of four weeks from the date of passing this order. In turn, the said doctor shall be at liberty to recover the compensation from the insurance company, if permissible in accordance with the terms and conditions of the policy, taken from them by the OP-1 doctor. |
