BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.360 of 2015

Date of Instt. 24.08.2015

Date of Decision: 13.02.2018

Mangat Ram Chawala son of Roshan Lal Chawala R/o Dashmesh Nagar, Street No.1, Shri Muktsar Sahib.

..........Complainant

Versus

1. Patel Hospital, Civil Lines, Jalandhar through its head/Chairman.

2. Dr. Swapan Sood, Patel Hospital, Civil Lines, Jalandhar.

3. Dr. Suresh Aggarwal, Patel Hospital, Civil Lines, Jalandhar.

4. Bansal Nursing Home, KKP, Shri Muktsar Sahib.

5. Reliance General Insurance Co. Ltd., 4^th Floor, Chintamani Avenue, Off Western Express Highway, Near Virwani Industrial Estate Goregaon (East) Mumbai 400063.

2. 1. 1. 1. 1. 1. 1. 1. ..….…Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Manuj Aggarwal, Adv Counsel for the Complainant.

Sh. VK Gupta, Adv Counsel for the OP No.1 to 3 and 5.

OP No.4 exparte.

Order

Karnail Singh (President)

1. This complaint is presented by the complainant, wherein alleged that the complainant is the resident of Sri Muktsar Sahib and is law abiding citizen of India. The OPs are skilled doctors and running hospital at above mentioned addresses. The complainant had higher the services of OPs, hence complainant is consumer of the OPs.

2. That unfortunately complainant suffers from stone problem in the right kidney and the complainant got his check up from OP No.4 on 21.09.2014. The OP No.4 referred to the complainant to OP No.1 for surgery. The complainant got admitted at the hospital i.e. OP No.1 on 22.09.2014. The OPs No.1 to 3 have guarantee for giving best and appropriate treatment and assured to the complainant that they will remove the stone of the complainant by surgery. The OPs No.1 to 3 told to the complainant that they had performed Retrograde Intrarenal Surgery with DJ Stenting on 23.09.2014 and stone was fragmented into small pieces with holmium lase 6 F Double J Stent kept on right side and the complainant was stable and was discharged in satisfactory conditions on 24.09.2014. The OP No.1 to 3 declared the surgery successful and also assured that the stone of the complainant was removed and charged Rs.98,766/-, vide bill dated 24.09.2014. The OP No.1 advised the complainant for checkup on 17.10.2014. The complainant follow all the instructions of the OP No.1 to 3 after the surgery, but the complainant got no relief, rather the complainant suffer more serious pain. Then the complainant again visited in the hospital of OP No.1 to 3 on 03.10.2014 due to serious pain. The OP No.1 to 3 told to the complainant that the previous surgery could not successful and one more Retrograde Intraenal Surgery is need to be done and they again done the above said surgery on 04.10.2014, but the complainant got no relief. The OP No.1 to 3 to hide their negligence again put stenting on 06.10.2014 of the complainant and charged an amount of Rs.59,962/- from the complainant, but the complainant got no relief and requested the OP No.1 to discharge him when OP No.1 to 3 failed to get relief to the complainant, so that the complainant get his treatment from other hospital, firstly OP No.1 to 3 assured the complainant that the surgery is successful and stone is removed, but later on, when the situation of the complainant become more critical, then they discharged the complainant and they further charged Rs.5000/- from the complainant. The complainant paid the said amount to the OP No.1 to 3, otherwise they were not ready to give all documents of the complainant treatment to the complainant. The complainant got admitted at DMC & Hospital at Ludhiana from 08.10.2014 and remained there till 13.10.2014 and got his treatment. The doctors gave report that the complainant having still stone 21.7 mm and 16.3 mm in the right kidney and charged Rs.25,000/-. This fact clearly shows that the OP No.1 to 3 has committed medical negligence on their part and charged a huge amount from the complainant. In this way, due to negligent act and conduct of the OP No.1 to 3, the complainant and his family members suffered great mental tension, harassment, agony and huge financial loss, for which complainant is entitle for compensation as prayed in the head note of the complaint. That the OPs never removed the stone from the kidney of the complainant, about which they charged the fee from the complainant and even they falsely told to the complainant that they removed the said stones, as such, this is a series negligence on the part of the OPs No.1 to 3 and its also amount to unfair trade practices and thus, the present complaint filed with the prayer that the complaint of the complainant may be accepted and OP No.1 to 3 be directed to refund Rs.1,63,728/- got from the complainant by the OP No.1 to 3 on account of surgery and medical expenses and further OPs be also directed to pay Rs.25,000/- spent of treatment at DMC, due to negligence and wrong treatment of OP No.1 to 3 and OPs be further directed to pay compensation for harassment to the complainant, to the tune of Rs.3,00,000/- and litigation expenses of Rs.7500/-.

3. Notice of the complaint was given to the OPs, but despite service, OP No.4 did not come present and ultimately, OP No.4 was proceeded against exparte, whereas OP No.1 to 3 appeared through their counsel and filed a joint reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable under any provision of law and is liable to be dismissed with heavy cost as there is no deficiency in service or negligence which brings the present case adjudicable by this Forum. It is submitted that M/s Patel Hospital Pvt. Ltd is a well-equipped tertiary care center, which has the necessary infrastructure and the qualified doctors. Doctors of the Patel Hospital gave assurance of providing the best possible medical treatment to the patient as any doctor would normally do to his patient and the same was happened in this case. However, while it is also to be understood that best efforts on the part of the doctors do not always ensure 100% success, it is also understood that the patient has to undergo complete gamut of treatment for optimizing results. It is also understood that the safety of the patient is paramount and it is the doctors decision to plan the treatment in a manner that the patient should not suffer any adverse effects, rather utmost care was taken to ensure that the patient did not have any serious complications of his cardiac condition and that was the real reason to stage the treatment. It is further alleged that from the bare perusal of the complaint and from the documents placed on record, no case of medical negligence is made out. It is submitted that the best possible treatment was provided to the complainant, looking to his medical history. The complainant was suffering from a heart disease, for which he had been operated earlier to replace his heart valve at Apollo Hospital, Delhi in 2001. A consultation with a cardiologist was taken to advice regarding the medications for blood thinners. After appropriate modifications to his medications, he was advised to admit on 22.09.2014 for further treatment. So, accordingly, in keeping with the high risk condition of the patient and exercising maximum caution to prevent any bleeding complications the procedure of first stage retrograde intrarenal surgery with laser Lithotripsy and high frequency dusting of kidney stone was done on 23.09.2014. To prevent any complications of obstruction, a double J Stent was inserted in the Ureter. In the waiting period for the stone fragments to pass the patient was discharged as there were no complaints and the patient was advised for further check up on 17.10.2014. The patient presented again with pain in the left flank on 29.09.2014, after checking, it was showed a complete fragmentation of the kidney stone into multiple small fragments with small stone burden in the kidney and some fragments struck in the lower part of the ureter (pipe of kidney). The patient was again given some painkillers and advised to report back if the pain did not subside, then the patient reported again on 3^rd October, 2014 with similar complaints and he was admitted and it was found that the stent was obstructing the passage of the lower ureteric stones and accordingly, it was planned to removed the stents, during stent removal all lower ureteric stones were removed by URS. Patient developed moderate fever or on the 5^th October, an antibiotics were changed. The patient underwent a Non Contrast Computerized Tomography of the KUB (Kidney, Ureter, Bladder) on 06.10.2014 to confirm status of kidney stones. It showed multiple small hyperdense calculi in various calyces with largest fragment being just 8 mm in size indicating that the stone was well fragmented. The fever settled on 7^th October. On morning of 8^th October, 2014, patient was sleeping comfortably, but left the hospital early morning with discharge on request without waiting for the doctor's visit. The patient did not bother to complete his treatment and never contacted the doctor for second stage of further treatment. There was no evidence of infection or bleeding. The patient was managed conservatively on antibiotics. As per the record submitted by the complainant no pain killers were administered and no pain killers were bought by the patient and no medications were prescribed for fever. As per record submitted by the complainant, the patient was not at all in critical condition when he admitted to DMC & H. The Ultra Sound report conducted at DMC & H cannot be relied upon being subject to inherent inaccuracy of ultrasound as a reporting modality as compared to a CT Scan. CT Scan is the most accurate diagnostic tool for diagnosing kidney stones. As per the record submitted the doctors at DMC & H have also not advised any further treatment after discharge. It is further averred that the complainant is barred by his own acts and conducts to file the present complaint against the answering OP No.1 to 3. False complaint is filed by stating totally wrong facts and further alleged that the OP is insured by the Reliance General Insurance Co., who are legally liable to pay, if any liability arising out of errors and omissions in the performance of insured's business including that of declared insured's qualified employee, vide two different policies. On merits, the admission of the complainant in the hospital as well as conducting of operation i.e. Lithotripsy is admitted, but the other allegations as made by the complainant are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

4. OP No.5 filed its separate written reply and contested the complaint by taking preliminary objections that the OP No.1 is duly insured with the answering OP No.5 and further submitted that the liability of the OP No.5 is limited to the extent of terms and conditions of the insurance policy and the answering OP is not bound to pay or compensate any claim/act/or award which is not specifically covered under the insurance policy. On merits, the allegations as made by the complainant in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

5. In order to prove his case, the complainant himself tendered into evidence his duly sworn affidavit Ex.CA alongwith some documents Ex.C-1 to Ex.C-36 and closed his evidence.

6. In order to rebut the evidence of the complainant, counsel for the OP No.1 to 3 and 5 tendered into evidence two affidavits Ex.OPA and Ex.OP5/A alongwith some documents Ex.OP-1 to Ex.OP-6 and closed the evidence on behalf of the OP No.1 to 3 and 5.

7. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

8. Briefly, the allegations of the complainant are that he suffered from stone problem in the right kidney and got checkup from OP No.4 on 21.09.2014 and he was referred for surgery to OP No.1 and accordingly, the complainant was admitted at the hospital of OP No.1 on 22.09.2014, where a guarantee was given by OP No.1 to 3 for best treatment and assured to the complainant that they will remove the stone of the complainant by surgery and then OP No.1 to 3 told the complainant that they had performed Retrograde Intrarenal Surgery with DJ Stenting on 23.09.2014 and stone was fragmented into small pieces and Double J stent kept on right side and accordingly, the complainant was discharged on 24.09.2014, but the complainant felt that there was no relief to the complainant and accordingly, he again approached to the OP No.1 to 3 and told that he suffering more serious pain and then the OP No.1 to 3 told the complainant that the previous surgery could not successful and one more Retrograde Intraenal surgery is need to be done and then again done the said surgery on 04.10.2014, but again the complainant got no relief and ultimately, the complainant approached to the DMC, Ludhiana, where from he got a treatment and who analyzed that two stones measuring 21.7 MM and 16.3 MM are still in existing in the right kidney, regarding that the Ultrasound report of the Abdomen conducted by the DMC, Ludhiana, is available on the file Ex.C-5 and accordingly, the complainant was admitted in the DMC, Ludhiana and Discharge Summary is available on the file Ex.C-3 and further alleged that there is a great negligence on the part of the OP No.1 to 3 for not conducting the surgery very carefully and as such, there is a deficiency in service on the part of the OP No.1 to 3 and they are liable to compensate the complainant and in support of his version, counsel for the complainant made a reliance upon a pronouncement of the Hon'ble Apex Court, decided in Civil Appeal No.(S). 4761 of 2009, titled as “Bijoy Sinha Roy (D) by LR Vs. Biswanath Dass & Ors and further made a reliance upon an other pronouncement, cited in 1969 AIR 128, titled as “Laxman Balkrishna Joshi Vs. Trimbak Bapu Godbole and Anothers”.

9. To the contrary, the case of the complainant is specifically refuted by the OP No.1 to 3 as well as OP No.5 with the submission that there is no negligence on the part of the OP No.1 to 3.

10. As per record available on the file, the complainant is also a heart patient and he is taking medicines and after considering the said disease of the complainant, the doctor has consulted this matter with the Cardiologist and after that they decided to go for operation of Laser Lithotripsy and accordingly, the complainant was made known the said procedure of surgery and accordingly, the complainant was admitted in the hospital on 22.09.2014 and Retrograde Intrarenal Surgery with Laser Lithotripsy and high frequency dusting of kidney stone was done on 23.09.2014, just to prevent any complications of obstruction a double J Stent was inserted in the Ureter and then he was discharged on 24.09.2014 while he was stable and the patient was advised for further checkup on 17.10.2014, but the patient again reported on 03.10.2014 with similar complaints and he was again admitted and it was found by the doctors as per reports that the stent was obstructing the passage of the lower ureteric stones and it was decided by the doctors to remove the stent and accordingly, the stent was removed and then on 08 October, 2014, the patient was himself left the hospital after discharging there from without waiting the doctors and thereafter, he never contacted for further treatment. The complainant alleged that the OP No.1 to 3 conducted twicely operation of Laser Lithotripsy, despite that stones are still existing in the right kidney and for that purpose, the complainant has brought on the file Ultrasound Report Ex.C-5, conducted by the DMC & H, Ludhiana, where the complainant admitted on 08.10.2014, in the aforesaid Ultrasound report Ex.C-5, two stones measuring 21.7 MM and 16.3 MM, but in order to remove these stones, DMC & H did not further perform any surgery or operation either Laser Lithotripsy rather as per Discharge Summary Ex.C-3, on the second page, it is categorically mentioned that the patient was managed conservatively on antibiotics and then discharged. So, it means that the hospital of DMC did not find any negligence on the part of the doctors, who previously provided medical treatment as well as conducted Laser Lithotripsy Surgery, so, if there is no expert evidence came on the file that the previous treatment given by the doctor is not a proper and due to their negligence, there is any complication, but as per record of the DMC, the condition of the patient was not shown at all in critical, when he was admitted to DMC and even as per records submitted the doctors at DMC have also not advised any treatment after discharge and under these circumstances, we are of the considered opinion that the onus is upon the complainant to prove that there is a negligence on the part of the doctor, who treated him, even no medical opinion is supported the case of the complainant produced on the file to prove that the alleged negligence was on the part of the doctors i.e. OP and accordingly, the negligence cannot be attributed to doctor so long, he performed his duty with reasonable skill and competency as detailed in the present case because as per medical record, the doctor has took all reasonable measure of degree of skill and knowledge for performing the Laser Lithotripsy Surgery of the complainant. So, with these observations, we are of the opinion that the judgment referred by the learned counsel for the complainant are not helpful in the present case because the facts of the said judgments are not identical to the facts of the present case and further, the negligence of the OP No.1 to 3 is not established on the file, if so then, there is no deficiency in service and accordingly, the complaint of the complainant fails and the same is dismissed with no order of cost. Parties will bear their own cost. This complaint could not be decided within stipulated time frame due to rush of work.

11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

13.02.2018 Member President