Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 14.
Instituted on : 09.01.2015.
Decided on : 24.07.2017.
Monika w/o Shri Ram Naresh s/o Shri Ramphal, resident of village Madina, Tehsil Meham, Ditrict Rohtak.
………..Complainant.
Vs.
- Pt. BDS University of Health Sciences, Rohtak through its Registrar.
- The Director, Pt. BDS PGIMS, Rohtak.
- Dr. Naresh Pal, Consultant, Surgery Department, Ward No.5, Unit-III, PGIMS, Rohtak.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH.VED PAL, MEMBER.
Present: Sh.Mukesh Parmar, Advocate for the complainant.
Sh.Raghubir Ahlawat, Advocate for opposite party No.1 & 2.
Sh.H.C.Dhankar, Advocate for opposite party No.3.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that in the month of February 2014, the complainant felt a severe pain in the upper part of abdomen and she visited the OPD of Surgery department, PGIMS, Rohtak where Dr. Ramesh examined her and prescribed some medicines and called her again. It is averred that on another visit, Dr. Ramesh prescribed some tests like X–Ray and USG of abdomen and called her again. The complainant again visited the hospital and it was told that a stone like object seems in upper part of abdomen and suggested to operate and diagnosis of disease was told by the doctors as Cholelithasis. It is averred that on 21.02.2014 the operation was conducted by Dr. Naresh Pal and she was discharged on 25.02.2014 but after discharge from PGIMS, Rohtak and follow up process, the complainant felt no relief in her pain in the operation area. The complainant made complaints several times to opposite party no.3 about her acute pain and problems and opposite party no.3 suggested that it will take a little time to be relieved from the pain. It is averred that the complainant feeling no relief, has contacted Dr. Jale’s Life Care Hospital Medical Mor, Rohtak on 13.05.2014 and where all the tests were conducted again and it was suggested to operate again the area which was operated by the opposite party No.3. The operation was conducted on 14.05.2014 and all were surprised that a bundle of bandage was found in the upper abdomen part which was operated by opposite party No.3. It was also noticed that the previous operation was not conducted by laser and it was a simple one. It is averred that due to wrong treatment given by the opposite party No.3 complainant had suffered lot of acute pain and mental agony and also suffered harassment and financial loss only due to wrong and negligent treatment and all for this opposite parties are bound to compensate the complainant with Rs.4.5 lacs. It is prayed that opposite parties may kindly be directed to compensate the complainant to the tune of Rs.4.5 lacs on account of acute pain, mental agony, harassment, deficiency in service and financial loss and also to pay Rs.25000/- on account of litigation charges to the complainant.
2. On notice opposite parties appeared and filed their separate written statements. Opposite party no.1 & 2 in their reply has submitted that complainant is not a consumer of answering institute since no charges/testing fee was taken from her and medical treatment was provided to her free of cost. The complainant has not spent a single paisa for the above purpose i.e. the services and testing etc. have been supplied to the complainant free of cost. Therefore, no relation of seller and consumer can be established between the complainant and the answering opposite party. It is averred that complainant was admitted in ward No.5 Unit III vide CR No.220165 after conducting some tests. She was never told by the opposite party no.3 that operation will be conducted by laser. She was operated by way of open surgery & not by laser. It is averred that the complainant was discharged by the answering institute with advice to follow up in OPD but she has not produced any OPD follow up record. It is averred that proper treatment was given to the complainant by the doctors of the answering opposite party institute and she was duly operated by way of open surgery. In medical terms while carrying out the open surgery there is no use of bandage. A piece of gauze is used for dressing only on the skin surface. The allegation of bandage on upper abdomen is baseless and unethical. In absence of any record it is not possible for the respondent institute to reply this para. Burden of proof regarding OPD follow up is lying on the part of complainant. On merits, it is submitted that entire faculty of the answering opposite party are well qualified and well equipped having better experience, hence there is no question of ability of the treating doctors, arises. All the other contents of the complaint were stated to be wrong and denied. Opposite party prayed for dismissal of complaint with costs.
3. Opposite party No.3 in its reply has submitted that a patient named Monika has been checked by the answering opposite party during his OPD hours and advised to undergo for operation by way of open surgery. It is averred that complainant was admitted in ward No.5 Unit III vide CR No.220165 with the diagnose Cholelithiasis. She was never told by the opposite party no.3 that operation will be conducted by laser. She was operated by way of open surgery & not by laser. It is averred that the complainant was discharged by the answering institute with advice to follow up in OPD but she has not produced any OPD follow up record till date. It is averred that the allegations made in the complaint are baseless and without any proof. It is averred that while carrying out the open surgery there is no use of bandage during surgery or thereafter. After the surgery a piece of Gauze is used for dressing only on skin surface. Therefore the allegation of bandage in upper abdomen part(body part of surgery) is baseless, beyond imagination and unethical. The treatment made by Dr. Jale’s Life Care Hospital is required to verify from the record as and when produced by the patient. It is averred that the patient was operated diligently with due care and operation and treatment were without any deficiency, hence the allegation mentioned in the complaint are baseless without any proof.
3. Both the parties led evidence in support of their case.
4. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C29 and has closed his evidence. On the other hand, ld. counsel for the opposite party No.3 in his evidence has tendered affidavit Ex.RW1/A, document Ex.R1(pg 1 to 22) and closed his evidence. Ld. Counsel for opposite party no.1 & 2 made a statement that evidence already filed on behalf of opposite party no.3 be read in evidence.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case it is not disputed that as per record placed on file, the complainant had taken treatment from PGIMS, Rohtak for Cholelithasis on 21.02.2014 and was discharged on 23.02.2014. The contention of ld. Counsel for the complainant is that after the operation her condition deteriorated and she felt severe pain in abdomen and therefore contacted Dr. Jale’s Life Care Hospital, Medical Mor, Rohtak on 13.05.2014 and it was found that a bundle of bandage was found in the upper abdomen part which was earlier operated by opposite party No.3. She was operated again for removal of alleged bandage and had to bear expenses of Rs.1.5 lacs on her treatment. To prove her contention ld. Counsel for the complainant has placed reliance upon the documents Ex.C1 to Ex.C22. On the other hand, contention of ld. Counsel for the opposite parties is that patient named Monika was diagnosed for Cholelithiasis. However the allegations made in the complaint regarding remaining of bandage in upper abdomen are baseless and without any proof. It is averred that while carrying out the open surgery there is no use of bandage during surgery or thereafter. After the surgery a piece of Gauze is used for dressing only on skin surface. Therefore the allegation of bandage in upper abdomen part(body part of surgery) is baseless and there is no evidence on record to prove the same.
7. After going through the file and hearing the parties it is observed that to prove her complaint complainant has not placed on record affidavit of any doctor or any expert evidence to establish that a bundle of bandage was found in the upper abdomen part. Hence from the documents placed on record it is observed that mere allegations cannot be relied upon unless they are corroborated with evidential value to conclude that there is deficiency in service or negligence on the part of the O.Ps. In this regard reliance has been placed upon the law cited in I(2017)CPJ 619(NC) titled as Miss Heart Parmar Vs. Venilal G.Panchal & Ors., whereby Hon’ble National Commission, New Delhi has held that: “Complainant has not examined any expert to prove that doctors have not followed standard of practice-Only because patient was died or suffered any mishap, it cannot be taken as medical negligence of treating doctor-Patient was treated under ICU care with regular monitoring of vital parameters-Negligence not proved”, as per II(2016)CPJ 48(Punj.) titled as Resham Singh Sandhu Vs. Ramesh Singh & Anr. and NIC Co. Hon’ble Puunjab State Commission, Chandigarh has held that: “Negligence cannot be attributed to doctor so long as he performed his duties with reasonable skill and competence-Findings given by District Forum are not based on proper appreciation of pleadings and evidence on record-Impugned order set aside”, as per 1(2017) CPJ 187(Ker.) titled as Babu Pulickal(Dr.) & Anr.Vs. Robin & Ors., Hon’ble Kerala State Commission, Thiruvananthapuram has held that: “Medical negligence-Wrong diagnosis and improper treatment alleged-Death of patient-Alleged deficiency in service-District Forum allowed complaint-Hence appeal-Appellants diagnosed illness of patient correctly and started treatments-There is nothing to indicate that appropriate drugs were not administered in appropriate dose at appropriate time –Treatment was given as per accepted protocol-Negligence not proved”, as per AIR 2010 Supreme Court 1050 titled as Kusum Sharma and Ors. Vs. Batra Hospital and Medical research Centre and Ors., Hon’ble Supreme Court of India has held that: “Medical Negligence- Surgery performed for removal of abdominal tumor-Procedure adopted by doctor performing surgery supported by expert opinion-Negligence cannot be attributed to doctor-Medical professionals are not to be unnecessarily harassed or humiliated so that they can perform their duties without fear and apprehension-Malicious prosecution against medical professor/hospitals for extracting uncalled for compensation-Not maintainable”, as per 2005(2)CLT 156 titled Heirs of the deceased Narasimha Reddy & others Vs. M.D. Rohini Hospital and another, Hon’ble National Commission has held that: “Medical negligence-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-It is for the expert doctor to decide what type of treatment should be given and to decide whether the operation should be performed or not-The duty of the doctor or a hospital is expected to take reasonable care in administration of the treatment-They cannot be condemned in case of misadventure, as per 2009(3)CLT 526 titled Nitish Sethi & Ors. Vs. Naresh Trehan & Ors., Hon’ble National Commission has held that: “Left Bundle Branch Block(LBBB)-Informed consent obtained-Death of patient aged 37 years-OPs have rendered treatment based on known medical text procedures-The allegations made in the complaint against surgeon not substantiated by any evidence-Mere allegations, apprehension, conjectures and surmises cannot be relied upon unless they are corroborated with evidential value to conclude that there is deficiency in service or negligence on the part of the Ops-There is no deficiency in service/negligence on the part of the Ops.” In view of the aforesaid law are fully applicable on the facts and circumstances of the case, it is observed that there is no deficiency in service on the part of opposite parties.
8. In view of the facts and circumstances of the case it is observed that complainant has failed to prove deficiency in service on the part of opposite parties. As such present complaint stands dismissed with no order as to costs.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
24.07.2017.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
……………………………..
Ved Pal, Member
