Date of filing: 19/09/2019
Date of Judgment: 30/06/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by Sri Ritesh Bhatia under section 12 of the Consumer Protection Act, 1986, against opposite parties (referred as OPs hereinafter) namely (1) R.G. Stone Urologety & Laparoscopy Hospital and (2) Dr. Pallab Shaha alleging deficiency in service on the part of OPs.
Case of the complainant in short is that as he was suffering from stomach pain, he went to OP1 hospital on 23.02.2019. He was examined by OP2. Investigation and diagnoses were carried from 24.02.2019 to 26.02.2019. Stone was found in common bile duct and gall bladder. OP 2 advised that the stone would be removed through Laparoscopy surgery; complainant was thus admitted at OP 1 hospital. Endoscopy and Laparoscopy was done but due to negligence of the hospital and concern doctor surgery was not successful and ultimately opposite parties again advised for open surgery, which was conducted on 01.03.2019. Thereafter complainant was discharged from the OP1 hospital on 07.03.2019. But in spite of two surgeries, complainant had pain and swelling in his abdomen, so he visited OPs on 18.03.2019 and told about complication but he was told by OP 2 that everything is Ok. But the complication in his whole abdomen increased day by day, so he again visited OPs but they advised him to wear the belt in his stomach which will cure those complications. But as per advise of OPs in spite of wearing the belt, complainant did not get any relief. So having no other option, complainant visited another surgeon namely Dr. M. P. Jha on 02.05.2019 who on investigation and diagnosis found that complainant was suffering from Incisional Hernia but he advised to wait for at least six months for its treatment. Due to the wrong treatment by the OPs, complainant suffered from such complication of Incisional Hernia. OPs neither disclosed to the complainant about such Incisional Hernia nor provided any treatment to cure it. Thus the present complaint is filed praying for directing the OPs to refund Rs. 1,64,356/- paid by the complainant towards wrong treatment, to pay Rs. 15,00,000/- as compensation and Rs. 2,00,000/- as litigation cost.
OPs have contested the case by filing the written version denying and disputing the allegations contending inter-alia that the complainant had consulted OPs for the first time on 23.02.2019 with the history of fever for last 15 days and abdomen pain. He had got an ultrasonography Reports stating cholelithiasis (presence of stone in the Gall Bladder) with choledeoholithiasis (presence of a gall stone in the common bile duct). Patient was properly explained about condition and he was asked to attend with CECT whole abdomen & thorough blood test. CECT whole abdomen was got done by the patient on 24.02.2019. Patient attended on 25.02.2019 with investigations reports. He was explained that there will be two procedures (1) to remove the stone from CBD and (2) to remove the gall bladder stone. Thereafter the procedure ERCP was done on 27.02.2019 to remove the stone from the CBD but stone was found too large to be retrieved by endoscopic maneuver. Stenting was done to assure billiary passage. So in such a situation the procedure laparoscopy to remove the stones from gall bladder was not proper for the reason that CBD was also to explore to remove the stone from CBD and make billiary clear as ERCP failed to remove the stone for being quite. Therefore open surgery was preferred and pros and cons and all immediate and late risk and complication for open surgery were explained to complainant and he consented for open surgery fully knowing that Incisional Hernia is known uncommon complication of the open surgery. Accordingly open surgery was done on 01.03.2019 which was successful and uneventful. Ultrasonography was repeated on 06.03.2019 which revealed no residual stone in CBD. Patient was thus discharged on 07.03.2019 after through ultrasound image screening with T-tube in Situ and was asked to visit on 18.03.2019. Patient visited on 18.03.2019. No stone was found and T-tube was removed. Patient thereafter attended as routine follow up with no complaints except certain discomfort on 26.04.2019 and on examination at Incision site was unequivocal for cough impulse as a sign of incisional hernia. As a precaution, patient was asked to wear a abdominal corset. He was also informed that hernia is repaired by a separate surgical procedure and is taken only after one year from the date of primary surgery. Patient thereafter never visited hospital. There has not been any medical negligence on the part of OPs. They have exercised due care on their part towards the patient and thus OPs have prayed for dismissal of the case.
During the course of trial, complainant has filed examination in chief on affidavit but OPs did not take any step. They have neither filed any questionnaire nor filed the examination in chief. Even during argument, OPs remained absent and none appeared on their behalf. So argument on behalf of the complainant has been heard. He has also filed brief notes of argument. Ld. Advocate for the complainant during argument has cited the decision of Hon’ble NCDRC in case of Rohandeep Singh Jaiswal Vs Kokilaben Dhirubhai Ambani Hospital and Medical Research Institute and 12 others.
So the following points require determination:-
- Whether there has been any medical negligence or deficiency in service on the part of the OPs?
- Whether the complainant is entitled to the reliefs as prayed for?
DEISION WITH REASON
Both the points are taken up for a comprehensive discussions.
Complainant has claimed negligence during his treatment by the OPs for mainly two reasons firstly he was told by OP 2 that the stone in Gall Bladder and in CBD would be removed through Laparoscopy surgery but due to negligence of the doctor, Endoscopy and Laparoscopy surgery did not succeed and complainant had to undergo open surgery. Secondly even after the open surgery when he was having complication, he visited OPs but OPs did not disclose him about incisional hernia and it is only after investigation and diagnoses by another doctor on 02.05.2019 he was informed that he was suffering from incisional hernia. Complainant suffered from incisional hernia only due to negligence and wrong treatment of OPs and as he was not provided any better treatment for such complication of incisional hernia.
To support his claim, complainant has filed following documents:
- Some photocopy of prescriptions (some of which are illegible)
- Bills,
- Discharge summary issued by OP 1.
- Prescription of Dr. M.P. Jha of Dhanbad dated 02.05.2019.
- Legal notice sent by the complainant through his Ld. Advocate
- Reply sent by OPs and
- documents relating to treatment at ILS hospital regarding Laparoscopic ventral Hernioplasty (IPOM) inclusive of discharge certificate.
On a careful scrutiny of these medical documents it appears from the prescription dated 25.02.2019 that on examination, doctor / OP 2 advised for admission and ERCP Plan for Lap Chole Surgery.
It is an admitted fact that on 27.02.2019 ERCP was done and that supports the contention of the OPs that as ERCP failed to remove the stone from CBD being quite big, open surgery was preferred though Laparoscopic surgery was planned initially. It is apparent from the complaint itself that the complainant was duly informed by the doctor that open surgery was required to be done which is sufficient indication of the fact that stone was quite big to retrieve by Endoscope or Laparoscopy procedure.
Complainant has alleged that due to negligence by the concerned doctor while performing endoscopic & Laparoscopic surgery, open surgery had to be done but he has failed to explain how there was any negligence. On the contrary OPs have filed written consent duly signed by the complainant which shows consent was given for conducting the open surgery or open cholecystectomy. He was told about nature and purpose of conducting the said open surgery. It is an established principles of law that party making the allegations has to establish it but the complainant herein has failed to establish that due to negligence on the part of OPs, ERCP failed and stone could not be removed from CBD. It is true that initial plan was ERCP procedure to remove the stone from CBD and Gall bladder but there is no evidence or opinion of any expert against the contention of the OPs that the procedure Laparoscopy to remove the stone from Gall bladder was not done as removal of the stone from the CBD was also to be explored and thus open surgery was preferred. It may be pertinent to point out that doctor cannot be said to be negligent if he has acted and treated the patient in accordance with the set guidelines and standards. It is already discussed above that complainant has not filed any opinion of any doctor / expert or any authority that performing of open surgery in the given situation at that time was wrong or it was not as per medical norms. So, the claim of the complainant about open surgery was done as Endoscopy and Laparoscopy surgery failed due to negligence on the part of OPs, is devoid of any merits and thus cannot be accepted.
Now coming to second part of alleged negligence during treatment, according to complainant he had suffered incisional hernia only due to wrong treatment and further he was not informed by the OPs that he was suffering from incisional hernia and neither was provided any better treatrment for that. In this context it may be pointed out that it is evident from the document filed by the complainant especially prescription of DR. M.P. Jha dated 02.05.2019 that complainant was diagnosed incisional hernia at incision site and he was asked to wait for at least six months for repairing of hernia. The prescription and discharge certificate of I.L.S. Hospital indicates that the complainant had visited the hospital on 14.09.2019. He was admitted on 22.10.2019 and operation for incisional hernia was conducted. It may however be mentioned that nowhere in those documents it has been mentioned that for any wrong treatment earlier or operations conducted by the previous doctor, complainant had suffered from incisional hernia. On the contrary consent form signed by the complainant and his wife as attendant, before open surgery conducted by OP 2, it has been specifically stated that there may be common complications include pain, infection, slow recovery etc. and uncommon complication include systems not relieved, incisional hernia etc. So as per consent form said complication of incisional hernia was informed to the complainant and his wife.
The allegation of the complainant is that he was not provided any better treatment after his discharge when he had complications. But on a careful scrutiny of the prescription dated 26.04.2019 it appears that complainant has been advised to wear abdominal corset. Advise to wear abdominal corset is sufficient indication of the fact that doctor / OP 2 has taken precautionary measure. So even though it has not been specifically written that as a precautionary measure for incisional hernia, complainant was advised to wear abdominal belt / corset but the same is merely an omission. Doctor / OP 2 omit to write it in the prescription. It is evident that operation of incisional hernia could only be done after a gap of at least more than six months from the open surgery. Same is also advised by Dr. M.P. Jha as well as the documents of ILS Hospital. Operation for incisional hernia was conducted at ILS Hospital on 23.10.2019 i.e. after about seven months of open surgery. So it is evident that complainant waited for operation of incisional hernia after consulting Dr. M.P. Jha but didn’t bother to visit OP 2 after 26.04.2019 if he had any complications even after wearing abdominal corset. So in the given situation of this case, we do not find any negligence in the medical treatment of complainant nor any deficiency therein on the part of OPs.
The case law relied upon by the complainant in case of Rohandeep Singh Jaiswal Vs Kokilaben Dhrubhai Ambani Hospital & Others, has no application in the given facts and situation of this case as it is already discussed above that the surgery was conducted with an informed consent and the open surgery conducted by OP 2 was successful and uneventful.
Thus in view of the discussions as highlighted above, as complainant has failed to establish his case, present complaint is liable to be dismissed.
Hence
ORDERED
CC/517/2019 is dismissed on contest.
