Haryana

Ambala

CC/307/2018

Gurjeet Kaur - Complainant(s)

Versus

Parbhakar Hospital - Opp.Party(s)

26 Aug 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

Complaint Case No .307 of 2018.

Date of Institution. :14.09.2018

Date of Order       : 26.08.2021.

 

1.       Gurjeet Kaur d/o Sh. Lakhmir Singh (wife of Shri Jitender Singh),    Resident of village Kami           Kalan,District Patiala.

2.       Manjit Kaur d/o  Sh. Lakhmir Singh (wife of Shri Gurjeet Singh),     resident of village Ghungran,   District Patiala (through her General   Power of attorney Shri Lakhmir Singh- complainant No.5)

3.       Ranjit Kaur d/o Sh. Lakhmir Singh (wife of Shri Jasbir Singh), resident      of village Madanpur, District Panchkula.

4.       Gurpreet Singh s/o Sh. Lakhmir Singh

5.       Lakhmir Singh s/o Sh. Babu Singh, Resident of village Mohra, Tehsil        and District Ambala.

 

                                                                                      ..Complainants.

           Versus

1.       Prabhakar Hospital, 2581, Cross Road No.1, Ambala Cantt (through          Dr. Prabhakar Hospital).

2.       Dr. Prabhakar Sharma, M.B.B.S., D.A. HCMS(Ex. FCGP), owner of        Prabhakar Hospital, 2581, Cross Road No.1, Ambala Cantt.

3.       Apex Insurance Consultant Ltd., #54, Vinoba Puri, Lajpat Nagar-II,            New Delhi, (through its Manager/Authorized Signatory).

4.       The Oriental Insurance Company Ltd. Ambala Cantt, (through its      Manager/Authorized Signatory).

5.       Dr. Duke P. Jaspal, Laparoscopic Surgeon at Parbhakar Hospital, 2581,      Cross Road No.1, Ambala Cantt.(Operating Dr. and Visiting   Collaborator at OP No.1 Hospital)

6.       Rajeev Ultrasound Centre, Near Municipal Committee Office, Punjabi        Mohalla, Ambala Cantt.(through Dr. Rajeev Gupta)

7.       The Postgraduate Institute of Medical Education & Research,   Chandigarh-160 012(through its officer in-charge/authorized Officer).

                                                                                      …Opposite parties.

 

 

Before:        Ms. Neena Sandhu,  President.

                   Ms. Ruby Sharma, Member,

Sh. Vinod Kumar Sharma, Member.

         

Present:       Sh. Ashish Sharma, Advocate, counsel for the complainants.

                   Sh. Tarun  Mehta , Advocate, counsel for OPs No. 1&2.

                   Sh. Amit Gupta, Advocate, counsel for Ops No.3&6.

                   Sh. Mohinder Bindal, Advocate, counsel for OP No.4.

                   Sh. Balbir Singh, Advocate, counsel for OP No.5.

                   Sh. Abhishek Kumar Premi, Advocate, counsel for OP No.7.

 

Order:         Smt, Neena Sandhu, President

 

Complainants have filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay compensation to the tune of Rs. 18,00,000/-(18 lac) alongwith interest @ of 6%  per annum from 15.05.2017 up to the date of payment.
2. To pay Rs. 40,000/- as compensation for mental agony and physical harassment.
3. To pay Rs.15,000/- as litigation expenses.

                   OR

          Any other relief which this Hon’ble Commission may deem fit.

 

                   This complaint has been filed by the legal heirs of Late Smt. Randhir Kaur. As per the complainants, Late Smt. Randhir Kaur was having a stone approximate size of 8/9 mm (correlated with reports) in her gall bladder. Since, she was feeling uncomfortable due to pain therefore, as advised by  doctor, the ultrasound tests were done by J.K. Ultrasound Centre and Rajeev ultrasound Centre i.e. Op No. 6 and it was confirmed that there was a stone of having size of 8/9 mm in her gall bladder.  On 04.05.2017, Smt. Randhir Kaur(since deceased) felt acute pain and she was taken to the OP No. 1, where OP No.2, thoroughly examined her and also conducted some tests and advised her for surgery, for removal of stone. On 05.05.2017, OP No. 2 told her that the Operation/Surgery will be conducted by way of laparoscopy and she will be discharged within 2-3 days after operation/surgery. OP No.1 hospital charged Rs. 20,000/- for the said operation but no bill was issued by it. OP No.2, conducted the operation at OP No.1 hospital, with the help of OP No.5, Laparoscopy Surgeon, as OP No. 1 has a tie up with the Op No. 5. OPs No. 2&5 after conducting the Operation/laparoscopy surgery, had assured the complainants that the operation has been conducted very successfully and the patient will be fine within 2-3 days. However, even after surgery Late Smt. Randhir Kaur, continuously felt pain in her abdomen and information regarding the same was duly given to OPs No.2 & 5. The said OPs told that this happened due to gastric problem and not because of surgery. Patient was having regular pain and her condition was deteriorated. On 09.05.2017, OP No.2, examined the patient and advised for ultrasound, which was conducted at Rajeev Ultrasound, Ambala Cantt i.e. OP No.6. OP No. 6, neither gave the report of the ultra-sound to the patient nor to her relatives nor told about the seriousness of the condition of the Late Smt. Randhir Kaur.  OP No.6 handed over the report of the ultrasound to the Op no.2 only. As Late Smt. Randhir Kaur was having persisting pain in her abdomen and her condition was deteriorating day by day. When OPs No. 2&5 found the condition of late Smt. Randhir Kaur uncontrollable then they referred her to the Postgraduate Institute of Medical Education and Research, Chandigarh(PGIMER) i.e OP No.7, on 11.05.2017.  On 11.05.2017, after conducting some tests the doctors of the OP No.7, hospital disclosed that condition of patient is very serious and critical, due to delay in adoption of proper medical procedures during surgery and after surgery. OP No.7 hospital, told the complainants that there is acute infection in the abdomen and it is a case of perforation peritonitis. This all happened due to the negligence of the doctors, at the time of operation and during care after operation. On 12.05.2017, doctors of OP No.7 hospital, conducted operation to save the life of late Smt. Randhir Kaur.  Inspite of their best efforts, she could not survive and died on 15.05.2017 at OP No.7 hospital, Chandigarh. Late Smt. Randhir Kaur died due to the negligence of the treating doctors, OPs No.1,2&5. Therefore, Ops No. 1 to 6, are liable to compensate the complainants for the financial loss, mental agony and physical harassment suffered by the complainants. By not compensating the complainants, the OPs No.1 to 6 have committed deficiency in service. Hence, the present complaint.

2.                Upon notice, OPs No.1 & 2 appeared through counsel and filed written version and has raised preliminary objections that the complaint is not maintainable as it falls under the ambit of Section 11 of CPC i.e. Res Judicata because complainant earlier had filed a complaint before this Hon;ble Commission, on the same cause of action and knowing this fact that the said complaint deserves dismissal,  at the time of arguments she made a statement to withdraw the said complaint on technical grounds. However, neither any technical reason was given nor explained by the complainants. Therefore, present complaint is not maintainable on the ground of “Res Judicata” On merits it is stated that the OP No.2, an ex-HCMS Class-1 medical officer is a qualified private medical practitioner having done MBBS from Govt. Medical College, Rohtak in the year 1984 and fellowship in anesthesiology, had already conducted thousands of operations in various fields. Considering the quality of medical services being provided to the people, patients from far away places comes to the OPs No.1 and 2 for treatment. OPs No.1 and 2 had treated and operated the deceased, earlier also to the entire satisfaction of the patient and her family. On 04.05.2017, Patient Smt. Randhir Kaur, came to the OPs No.1 and 2, with a complaint of pain in right hypochondrium, for last 3-4 days and she was under treatment of some other doctor, prior to coming to OP No.1 hospital and she was well aware of the diseased suffering from. She was also carrying two ultrasound reports, one of J.K. Ultrasound Centre and another of Rajeev Ultrasound  Centre (OP No.6) and also some investigation reports. The patient and her relatives requested the OP No.2, to remove her gall bladder laparoscopically as she was having stones in the gall bladder. OP No.2, following the well-established principle of diagnosis in the treatment thoroughly examined and found that the patient was having hepatomegaly,  aute cholecystitis,cholelithiasis,hypertension and  diabetes mellitus. She was also having some sort of body ache, for which she was taking treatment in the form of some injections from other medical practitioner. OP No.2, advised her to come on the next day for check up by the laparoscopy surgeon for relevant investigation. Detailed pre-anaesthetic assessment (PAC) was done and it was diagnosed, hepatomegaly with fatty changes in liver with cholecystitis with cholelithiasis with hypertention with diabetes mellitus. Laparoscopy Cholecystectomy was advised, but “no oral or written guarantee was given”. All risks and complications related to surgery and anaesthesia were explained to the patient as well as to her family members, who accompanied her. It was told that on 05.05.2017, Dr. Duke P. Jaspal i.e OP No.5 an experienced Laparosocopic surgeon, having professional qualifications MBBS, MS, (General Surgery) will check up the patient. An amount of Rs.96,000/- were taken as operation fee and patient was got admitted on 05.05.2017 at about 10 AM, by her daughter in law Mrs. Neha.  All risks regarding anaesthesia and surgery were explained again to the patient party and consent was also taken. A detailed examination by the laparoscopy surgeon, Dr. Duke P.Jaspal, was done and he also explained the risks involved in the surgery, to the patient and her family members.  Dr. Duke P.Jaspal, performed laparoscopy cholecystectomy at 11:30 AM on 05.05.2017, under general anaesthesia given by OP No.2, diligently, prudently, with utmost due care and caution. After operation, she was shifted to ward at 12:30 PM. On shifting her to ward on 05.05.2017 at 12:40 pm, patient’s general condition was good, pulse was 86/min, spo2 100%, BP was 120/70 mmhg and the patient was having no complaints. On 06.05.2017 at 6.00 PM, the patient was seen by Dr. Duke P.Jaspal, her general condition was good. Pulse was 86/min, BP was 130/80 mmhg, urine output was adequate and there was no complaints as the patient was comfortable. On 07.05.2017 at 9 am, on the second post-operative day, patient’s general condition was good. On 08.05.2017 at 9 am, third post-operative day, there was no complaint and all medical parameters were found OK. On 09.05.2017 at 9 AM, on fourth post-operative day, patient’s general condition was average afebrile, pulse was 86/mm, BP 180/100 mmhg. While examination patient complaint about some distention in her abdomen. On abdomen examination it was found that abdomen was soft, bowel sounds, absent, distension+ investigations were advised of TLC, DLC, Blood urea, creatinine, liver function tests, USG whole abdomen, X-ray abdomen standing. At 4 PM, patient was seen by Dr. Duke P.Jaspal, and he found that patient’s general condition was fair. Patient complained of mild distension. Patient was put on conservative treatment. Tests/investigations were done on 09.05.2017. An ultrasound was done, which was suggestive of distended gut loops with some Is in the peritoneal cavity. X-ray abdoman standing, was done, which was suggestive of free air see under the dame, distended gut loops seen. No report or information as alleged was concealed from the patient or her family. The patient was treated in lines of paralytic ileus (post cholecystectomy) as advised by the operating surgeon. On 10.05.2017 at 10 AM, patient’s general condition was same. At 5 PM, patient was seen by the doctor, general condition was same. On 11.05.2017, the patient’s general condition was average. In view of continuous presence of distension in the abdomen and the presence of some fluid in the peritoneal cavity, patient was referred to PGI, Chandigarh, for further management on 11.05.2017 at 12’O Clock. Reports of various tests/investigations done before referring the patient to PGIMER, Chandigarh,so that, there was no infection to the patient as the patient was afebrile, pulse normal, TLC normal. There was no multi-organ failure as liver function tests were normal and serum creatinine was normal. While conducting the operation of Smt. Randhir Kaur, every precaution was taken and there was no negligence in performing the operation. Patient’s preoperative and postoperative period remained uneventful. Above referred tests/ investigations show that patient was stable, non toxic and without any multi organ failure at the time of referral to PGI, Chandigarh. There was no negligence or deficiency in service on the part of Dr. Prabhakar Sharma or Prabhakar Hospital or the operating surgeon, Dr. Duke P.Jaspal. Patient Randhir Kaur, was already suffering from hypertension, diabetes mellitus, gallbladder stone and body ache of unknown origin, as she was taking injections/capsules/tablets quite regularly. Patient died her natural death, due to the complication of gall bladder surgery. No doctor at PGI has pointed out any negligence on the part of the OPs nor any document has been placed on record that to show that any person from PGI conveyed to the patient or her family members that “the condition of the patient is too serious or critical or at last stage, due to delay and non-adoption of proper medical procedure and lack of intensive care and other procedure during surgery and even after post-operative surgery requirements and care.” It is further stated that as per the documents filed by the complainants, patient died in P.G.I. due to  ‘Sepsis with multi organ failure’ on account of ‘perforation peritonitis’ on 15.05.2017, whereas when she was referred to PGI Chandigarh on 11.05.2017, she was stable, non-toxic and without any sign of multi-organ failure. M/s Prabhakar Hospital i.e. OPs No.1 was covered for risk by private insurer Apex insurance consultant Ltd, vide letter No.AICL/DEL/02/PL/14208 dated 24.07.2017 valid from 17.07.2016 to 16.07.2018 i.e. during the period of treatment of Late Smt. Randhir Kaur. Dr. Prabharkar Sharma i.e. OP No.2 was also insured with the Oriental Insurance Company Limited, vide policy No.272200/48/2017/7386 for the period from 12.07.2016 to 11.07.2017. Since, there is no medical negligence on the part of OPs NO. 1&2, therefore, the complaint filed against them may kindly be dismissed.

3.                Upon notice, OP No.3 appeared through counsel and filed written version and has raised preliminary objections with regard to cause of action and maintainability etc.  On merits, it is stated that the OP No.3, was neither a member of the treating team in any of the hospitals, nor is the insurer of any hospital or doctor and is only an insurance consultant and cannot be saddled with any alleged liability. The rest of the allegations levelled by the complainants were denied for want of knowledge and prayer has been made for dismissal of the present complaint with exemplary cost.

4.                Upon notice, OP No.4 appeared through counsel and filed written version stating therein that as alleged by the complainants, operation of late Smt. Randhir Kaur was done by OP No. 5. Since, the subject policy was issued to indemnify the Op No. 2 only, therefore, it is only liable to indemnify the insured i.e. OP No.2 as per terms and conditions of insurance policy.  The present compliant has been filed on false and frivolous grounds, thus, same may kindly be dismissed with special costs.       

5.                Upon notice, OP No.5 appeared through counsel and filed written version and has raised preliminary objections with regard to maintainability.  On merits, it is stated that patient was examined and laparoscopy surgery was advised. On 05.05.2017, surgery was performed by answering OP and OP No.2, diligently, prudently with utmost due care. On 06.05.2017 at 6.00 PM, patient was seen by Dr. Duke P.Jaspal, her general condition was good. Pulse was 86/min, BP was 130/80 mmhg, urine output was adequate and there was no complaints as the patient was comfortable. On 07.05.2017 at 9 am on the second post-operative day, patient’s general condition was good. On 08.05.2017 at 9 am third post-operative day there was no complaint and all medical parameters were found OK. On 09.05.2017 at 9 AM on fourth post-operative day, patient’s general condition was average afebrile, pulse was 86/mm, BP 180/100 mmhg. Tests/investigation shows that she was stable, non toxic and without any multi organ failure at the time of referral to PGI, Chandigarh. No doctor at PGI has pointed out any negligence on the part of the OPs No.2 and 5. Rest of the allegations levelled by the complainants were denied for want of knowledge and prayer has been made for dismissal of the present complaint with special cost.

6.                Upon notice, OP No.6 appeared through counsel and filed written version and has raised preliminary objections with regard to cause of action and bad for mis-joinder of necessary party. On merits, it is stated that Smt. Randhir Kaur, came to the OP No.6 on 03.05.2017, on referral from Dr. Sarita Gupta for ultrasonography of her abdomen. OP No.6 performed the ultrasound of the abdomen of the patient and following impression was given in the report dated 03.05.2017:-

a. Hepatomegaly with Fatty changes in Liver.

b. Cholecystitis with Cholelithiasis.

          To be correlated clinically & with relevant investigations. At the end of the report it was printed-

“the report is only an impression and not the final diagnosis. Further investigations & clinical correlation needed. Report not valid for medico-legal purposes.”

 

          Report dated 03.05.2017, was handed over to the patient and was also sent to the doctor. On 09.05.2017, Dr.Parbhakar Sharma, again referred Smt. Randhir Kaur, to the answering OP, for ultrasound of her abdomen. Report dated 09.05.2017 is as under-

“IMPRESSION: DISTENDED GUT LOOPS WITH FLUID IN PERITONEAL CAVITY:? CAUSE.

To be correlated clinically & with relevant investigations.

At the end of the Report it was printed-

“The report is only an impression and not the final diagnosis. Further investigations & clinical correlation needed. Report not valid for Medico-legal purposes.”

 

On 09.05.2017, the answering OP done the X-ray Abdomen S/L of Mrs. Randhir Kaur, following report was given:-

 

“Free air seen under the domes. Distended gut loops seen. Few air fluid levels seen.”

 

 On 11.05.2017, the answering OP was requested to perform review ultrasound and the report is as under:-

-Gut activity+

-Amt. of Fluid appears increased.

-Reverbration artifacts so/free air.

(post lap-cholecystectomy case).

 

Thereafter patient did not come to the answering OP for any other investigations/tests. The reports of the ultrasound and X-ray were handed over to the patient and also sent to the concerned doctor. The said reports cannot be treated as final diagnosis, which can only be made by the treating doctor/surgeon, after co-relating the report with clinical findings. Answering OP did not commit any mistake or negligence by handing over these impressions/reports to the patient and by sending the same to the treating doctor. Rest of the allegations levelled by the complainants were denied for want of knowledge and prayer has been made for dismissal of the present complaint with special cost.

7.                Upon notice, OP No.7 appeared through counsel and filed written version stating therein that the patient namely Smt. Randhir Kaur was referred to PGIMER Chandigarh on 11.05.2017 by Prabhakar Hospital, Ambala Cantt and was admitted in emergency recovery word 05 vide CR No.201703083618. Patient was referred, 6 days after laproscopic chaloecystectomy done for symptomatic gall stone disease on 05.05.2017, following the surgery, patient developed abdominal distension and on 11.05.2017 was detected to have free aid in abdomen for which she was referred to PGIMER Chandigarh. Patient was a known case of Type 2 Diabetic Mellitus for 10 years and hypertension for 5 years. On evaluation, in emergency surgery OPD on 11.05.2017, the diagnosis of perforation peritonitis was made and patient was operated, on 12.05.2017 at 08:15 AM, under general anesthesia. There was 1*1.5 cm perforation in ileum with contamination of abdominal cavity. Patient exploratory laprotomy with peritoneal lavage with resection of the perforation bearing ileal segment with double barrel loop ileostomy. Patient required ionotropic support in the intra-operative period and was shifted to main ICU, after surgery for elective mechanical ventilation and critical care. In post-op period patient was managed with ionotropic and ventilator support. Intra-op fluid culture grew yeast and ascitic fluid culture grew - Enterococcus faccium. Patient was on triple iontropic support and developed acute renal failure. Subsequently patient succumbed to multi organ failure on 15.05.2017 due to sepsis. The complainants have neither alleged any medical negligence nor has claim any relief against it therefore the complaint filed against it may kindly be dismissed.  

8.                The ld. counsel for the complainants tendered affidavit of Shri Lakhmir Singh son of Shri Babu Singh, resident of Village Mohra, Tehsil & District Ambala as Annexure CA alongwith documents as Annexure C-1 to C-15 and closed the evidence on behalf of complainants. On the other hand, learned counsel for the OPs No.1 & 2 tendered affidavit of Shri Dr. Prabhakar Sharma, owner & proprietor of Prabhakar Hospital, 2581, Cross Road No.1, Ambala Cantt., as Annexure OP1/A alongwith documents as Annexure OP1/1 to OP1/20 and closed the evidence on behalf of OPs No.1 & 2. Learned counsel for the OP No.3 tendered affidavit of Shri Satya Prakash son of Surinder Prasad, Manager C/o Apex Insurance Consultants Ltd., 54, Vinobapuri Lajpat Nagar II, New Delhi-110024 as Annexure OP3/A and closed the evidence on behalf of OP No.3. Learned counsel for the OP No.4 tendered affidavit of Shri S.K. Madan, Sr. DM & authorized signatory, Oriental Insurance Company Limited, Divisional Office, Ambala Cantt as Annexure OP4/A and closed the evidence on behalf of OP No.4.  Counsel for the OP No.5 has made a statement that evidence of OPs No.1 & 2 may kindly be read as treated as evidence of OP No.5 and closed the evidence on behalf of OP No.5. Learned counsel for the OP No.6 tendered affidavit of Shri Dr. Rajeev Gupta, Adult Male, Proprietor of Rajeev Ultrasound Centre, Near Municipal Committee Office, Punjabi Mohalla, Ambala Cantt (Haryana), as Annexure OP6/A alongwith documents as Annexure OP6/1 to OP6/4 and closed the evidence on behalf of OP No.6. Learned counsel for the OP No.7 tendered affidavit of Prof. Rajesh Kumar Gupta, Prof. of General Surgery, PGI, Chandigarh as Annexure OP7/A and closed the evidence on behalf of OP No.7.

9.                We have heard the learned counsel for the parties and carefully gone through the case file and also gone through the written arguments filed by the learned counsel for the complainants and learned counsel for the OPs No.1 and 2.

10.              At the outset, the learned counsel for the OPs No.1&2  vehemently argued that the principal of ‘Res Judicata’ is applicable in this case because while withdrawing the earlier complaint on technical ground, neither any technical reason was given nor explained by the complainants and prayed that complaint may be dismissed with costs. On the contrary, the learned counsel for the complainants has argued that the principal of ‘Res Judicata’ is not applicable in this case because the earlier complaint filed by the complainants was dismissed as withdrawn by this Hon’ble Commission, however liberty was granted to file afresh complaint on the same cause of action, accordingly, complainants filed the present complaint. Since vide order dated 14.08.2018, this Commission granted a liberty to the complainants to file afresh complaint on the same cause of action, therefore the principal of ‘Res Judicata’ is not applicable in this case.  Thus we do not find any merits in the arguments put forth by the learned counsel for the OPs No.1 & 2, hence rejected.

11.              On merits, it may be stated here that perusal of the record reveals that when late Smt. Randhir Kaur, (herein after referred as ‘deceased’) visited the OPs No.1 hospital, she was diagnosed as stone in gall bladder, for which surgery was recommended for removal of gall bladder. There is nothing on record to prove that over and above the said disease she was suffering from any other complication of abdomen or intestine (except that she was diabetic and hypertensive, which infact are lifestyle diseases only). It is also an admitted fact that infection/pus was found in the intestine of the deceased, only after removal of her gall bladder. Since the allegations levelled against the OPs No.1,2 & 5 are regarding medical negligence as such onus is automatically shifted upon the said OPs to prove contrary. The learned counsel for the Ops No. 1,2&5 have averred that after operation patient develop ‘paralytic ileus’, and as per medical literature which is very common after the abdomen surgery and that they started giving treatment immediately to the patient. They further averred that they have done the laparoscopic surgery very diligently and with due care and there is no medical negligence on their part and that no expert report has been placed on record by the complainants to prove any medical negligence against the Ops No.1,2 & 5.  

                   On the contrary, the learned counsel for complainants has contended that as per medical literature, the problem of ‘paralytic ileus’ will resolve, within 2 to 4 days after surgery. But in the present case, the condition of the patient worsened day by day and due to acute infection/sepsis, she died within ten days after the operation The facts and circumstances shows that due to the negligence of the OPs No.1, 2&5, the condition of the patient got deteriorated day by day and when the case was out of their control of the OPs No.1, 2 & 5 then they referred the patient to the PGIMER, Chandigarh,  after a delay of seven days. The condition of the patient was so critical that the doctors of the PGIMER, Chandigarh, inspite of their best efforts could not save her life.   He further contended that when there is negligence on the face of it then there is no need of any expert opinion. It is a case of res-ipsa loquitur.              

                   In the case of V.Kishan Rao Vs. Nikhil Super Specialty Hospital & Anr., civil appeal No.2641 of 2010, decided on 08.03.2010,  the Hon’ble Supreme Court of India has held that the claim of the petitioner cannot be rejected only on the ground that expert witness was not examined to prove negligence of the doctor. It is not required to have expert evidence in all the cases of medical negligence. In view of the law laid down by the Hon’ble Supreme Court in the case of V.Kishan Rao Vs. Nikhil Super Specialty Hospital & Anr. (supra), the present complaint also cannot be rejected because there is no medical expert report.   Undoubtedly, patient developed ‘paralytic ileus’ after the operation/surgery and during the period when she was admitted in the hospital. From the record it is coming out that the OPs No. 1,2&5 gave  her treatment but there was no improvement in the condition of the patient and when her condition became critical then they referred her to PGIMER, Chandigarh, that too after a delay of seven days.  All this shows that the OPs No.1,2 & 5, have committed mistake by not referring the patient to the PGIMER, Chandigarh, in time. Even otherwise in the record of the PGIMER, Chandigarh, where the second surgery was conducted, it has nowhere been mentioned that the disease was not outcome of the surgery performed by the OPs No.1,2 &5. Whereas, on the other hand, in its written statement, the PGIMER/OP No.7 has clearly averred that “Following the surgery, patient developed abdominal distension and on 11.05.2017 was detected to have free aid in abdomen for which she was referred to PGIMER Chandigarh and that there was 1*1.5 cm perforation in ileum with contamination of abdominal cavity.” The opposite parties except PGIMER have failed to produce on record, any evidence to prove that the death of the patient was having no nexus with the treatment given by them, especially in the face of contents of the PGIMER referred to above. Thus, it is proved that it is only on account of the negligence of the abovesaid OPs, the PGIMER, Chandigarh had to conduct second surgery on the deceased. In the case of Pragathi Hospital and Ors. Vs. Kumari Shirisha Madhuri & Ors., decided on 12.10.2009, the Hon’ble National Commission, New Delhi while upholding the concurrent orders of the Hon’ble State Commission and District Commission has held that no evidence that abdominal ulcer, perforated or otherwise, existed before first surgery. Surgical perforation occurred in the course of first surgery, which necessitated second operation leading to death of the patient.  In the case of M. Aiyappan (Dr.) and Ors. Vs. Lakshmi, decided on 10.12.2007, the Hon’ble National Commission, New Delhi while dismissing the revision petition has observed that after surgery for removal of stone, condition of the patient worsened, OPs instead of taking immediate steps to drain fluid collection delayed to correct problem. Complainants have to undergo further treatment in another hospital deficiency in service and negligence proved. It is thus a case of medical negligence and the OPs No.1,2 and 5, cannot regal out the same. With these observations, we are of the opinion that although, the grievance of the complainants cannot be measured yet relief can be given to them by granting appropriate compensation. The quantum of compensation can be granted by considering the amount spent on the treatment, age and financial status of the deceased and the mental agony and physical harassment suffered by the legal heirs due to the sudden death of late Smt. Randhir Kaur.  As per the death certificate Annexure C-5, Randhir Kaur was about 50 years of age. Her income tax return Annexure C-6, shows that her yearly income for the year 2016-17 was Rs.2,68,125/-.  She can be expected to be spending about Rs.1,70,000/- on herself and contributing the remaining amount of Rs.1,00,000/- approximately to the complainants. In this case we can apply the multiplier of 10. The amount of compensation to which the complainants would be entitled is Rs.1,00,000/-x 10=10,00,000/-. The complainants are also entitled for litigation expenses.

                    So far as the complaint filed by the complainants against the OP No.3 is concerned. It may be stated here that the learned counsel for the OPs No.1 and 2 has contended that during the time when Late Smt. Randhir Kaur had taken the treatment from the OPs No.1 and 2, they were duly insured with the OP No.3. On the other hand the learned counsel for the OP No.3, has contended that the OP No.3 was neither the insurer of the hospital nor of the doctor. It is only an insurance consultant and cannot be saddled with any alleged liability. No policy document issued by OP No.3, has been placed on record by the OPs No. 1&2. Since no policy has been issued by OP No.3 in favour of the Ops No.1 & 2 and it is merely an insurance consultant, therefore, no liability can be fastened against it and the complaint filed against it is liable to be dismissed.

                    With regard to complaint filed against OP No. 4, it may be stated here that from the perusal of the policy document Annexure OP1/17, it is evident that the M/s Prabhakar Hospital i.e OP No.1 was duly insured with the OP No.4, for a sum of Rs.5,00,000/-(5 lac), for the period from 24.07.2016 to 23.07.2017. Perusal of policy document, Annexure OP1/19, reveals that Dr. Prabhakar was insured with the OP No. 4 for a sum of Rs. 5,00,000/-(5 lac) for the period from 12.07.2016 to 11.07.2017. Since the medical negligence has already been proved against the OPs No. 1&2, therefore, OP No. 4, being the insurer is liable to indemnify to both the insured for Rs.10 lac (Rs.5 lac each).  

                   With regard to the complaint filed by the complainants against the OP No.6, it may be stated here that it is a diagnostic centre and had done the ultrasound of the deceased. No negligence is attributable towards the OP No.6, hence, the complaint filed against it is liable to be dismissed.

                   Even the complaint filed by the complainants against OP No.7, is also liable to be dismissed because the complainants have neither alleged any medical negligence, nor have claim any relief against it. It is just a performa party.

                   In view of aforesaid discussion, we hereby dismiss the present complaint against OPs No.3, 6 & 7 and allow the same against OPs No.1, 2, 4 and 5 and direct them as under:

1.       To pay Rs. 10,00,000/-, as compensation to the complainants, on account of medical expenses incurred in the treatment of the deceased, financial loss, physical harassment and mental agony suffered by complainants due to sudden death of late Smt. Randhir Kaur.

2.       To pay Rs. 20,000/- as litigation expenses.

 

          However, OP No. 4 shall only be liable to compensate the complainants to the extent of Rs.10 lac i.e. Rs.5 lac each, maximum insured amount as mentioned in the insurance policies referred to above, to the complainants. The OPs No.1,2 & 5 are jointly and severally, directed to pay the litigation expenses of Rs.20,000/- to the complainants. The order be complied with the OPs No.1,2,4 and 5 within 45 days from the date of receipt of the certified copy of this order, failing which, the awarded amount shall carry interest @ 5% per annum from the date of order till its realization. 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 on :26.08.2021

 

 

 

 

          (Vinod Kumar Sharma)  (Ruby Sharma)               (Neena Sandhu)

              Member                         Member                       President

 

 

Present:       Sh. Ashish Sharma, Advocate, counsel for the complainants.

                   Sh. Tarun  Mehta , Advocate, counsel for OPs No. 1&2.

                   Sh. Amit Gupta, Advocate, counsel for Ops No.3&6.

                   Sh. Mohinder Bindal, Advocate, counsel for OP No.4.

                   Sh. Balbir Singh, Advocate, counsel for OP No.5.

                   Sh. Abhishek Kumar Premi, Advocate, counsel for OP No.7.

 

Vide our separate detailed order of even date, the present complaint has been dismissed against the OPs No.3,6 & 7 and the same has been allowed against OPs No.1,2,4 and 5. File be consigned to Record Room, after due compliance