BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR.

                                                          C.C. No.134 of 2014                                                               Date of Institution: 26.3.2014           

                                                          Date of Decision: 18.2.2015

Baljinder Singh, aged 50 years, son of Khanda Singh, resident of Seed Farm, Dhani Karraka Singh, Tehsil Abohar, District Fazilka.

                                                                                      ....... Complainant

Versus       

1. Sai Hospital & Laparoscopic Surgery Centre, College Road, Abohar, through its Incharge/Proprietor Dr. Vinod Pal Sethi.

2. New India Assurance Company Limited, Sunam, through its Branch Manager.

                                                                             ........ Opposite parties

Complaint   under Section  12 of the Consumer Protection Act, 1986.

                                                          *        *        *        *        *

PRESENT :

For the complainant               :         Sh. Sushil Arora, Advocate

For opposite party No.1                   :         Sh. Anand Gupta, Advocate

For opposite party No.2                   :         Sh. Ashwani Dhingra, Advocate

QUORUM

S. Gurpartap Singh Brar, President

S. Gyan Singh, Member 

ORDER

GURPARTAP SINGH BRAR, PRESIDENT:-

                   Brief facts of the complaint are that there was problem of stone in Gall Bladder of the complainant, where about he got conducted ultrasound of his Gall Bladder as per the following detail:-

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Every time location of gall bladder of the complainant was clearly shown by the above Ultrasound Centres. Due to the said problem, the complainant approached opposite party No.1 on 12.4.2012, who after got conducting his examination, admitted him in the hospital. On 13.4.2012, he got conducted his ultrasound and came to know about exact location and problem of his Gall Bladder from Sidharath Ultrasound and Colour Doppler as per reference of Dr. Vinod Pal Sethi. Thereafter, the complainant showed the report of said ultrasound as well as his earlier reports to Dr. Sethi. After going through all the facts and medical record, Dr. Vinod Pal Sethi told the

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complainant and his family members that opposite party No.1 had to remove his Gall Bladder by way of Laparoscopic Surgery, which shall take 15-20 minutes only and for the said purpose, opposite party No.1 received an amount of Rs.25,000/- as package surgery expenses, whereas no bill or receipt was issued by opposite party No.1. Further it has been pleaded that on the same day i.e. 13.4.2012, opposite party No.1 Dr. Vinod Pal Sethi started his Laparoscopic Surgery. After half an hour, Dr. Vinod Pal Sethi came outside the operation theatre and told his all family members his wife Surinder Kaur, Son Kamarpreet Pal Singh and brothers-in-law namely Avtar Singh, Harinder Singh, Baldev Singh sons of Kashmir Singh, resident of Nai Abadi Abohar that he could not trace out his Gall Bladder and opposite party No.1 had to conduct open surgery. Thereafter, Dr. Vinod Pal Sethi started his open surgery without calling anesthesia expert. After about 10-15 minutes, opposite party No.1 again came outside the operation theater in a sweating position and told his above said family members that he could not traced out his Gall Bladder and further told them to immediate shift the complainant in some higher centre for his surgery without any delay. In such a position then opposite party No.1 called another doctor of Abohar to stitch his open port. Further it has been pleaded that the complainant remained admitted in his hospital till 17.4.2012, opposite party No.1 discharged the complainant by way of

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issuing prescription slip dated 17.4.2012 and without issuing his receipt of fees and indoor record, other prescription slip shown as XX OP Finding, Laparoscopically, Omentus, Tr Colour, Stomach densely adhered, C(with) Liver and ? Gallbaladdder Forse Site converted to open-exploration. All omental adhesion separated, Tr colour stomach separated from Gall Bladder Forse site, GB Could not be visualized, Closure done in layers explained to patient and relatives referred higher centre for his further investigation and treatment. After discharging from the above said hospital, the complainant respectively got conducted his ultrasound on 27.6.2012, 25.5.2013, 9.8.2013, 6.12.2013 and on 8.12.2013 from the concerned ultrasound centers as mentioned above and the above said ultrasound reports clearly show existence, location and problem of his gallbladder. Further it has been pleaded that till date the further and proper treatment of the complainant could not be conducted from any expert doctor due to non- availability of his treatment summary and medical record, which was withheld by opposite party No.1 and has not been providing the same despite repeated requests and demands of complainant. Pleading deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has prayed that the opposite parties be directed to pay an amount of Rs.19,00,000/- as compensation for causing harassment, mental agony and physical stain  and Rs.25,000/- as litigation expenses.

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2.               Upon notice, the opposite parties appeared and filed their respective written replies to the complaint. In its written reply, opposite party No.1 has pleaded that the complainant was aware of his disease of gall bladder stones, but was neglecting his problem by postponing surgery. Even the ultrasound reports submitted clearly show that he was getting these investigations since 2009 from various places without getting himself operated and was rather prolonging and complicating his illness. On 12.4.2012, the complainant presented as OPD patient with history of gall bladder pain and stones in right Hypochondrium (pain of right side of upper part of abdomen) since last 6-7 years duration. The complainant was advised for the operation and he was thoroughly investigated with all blood and urine tests, ECG and medical check-up was done at hands of physician Dr. Naveen Sethi for fitness of operation for anaesthesia and admitted on 13.4.2012 for operation. Thereafter, on 13.4.2012, fresh ultrasound was advised pre-operatives. The complainant was given all pre-operatives medicines i.e. antibiotics, i/v fluid, antiemetics and pre-anaesthetic medication and was taken to operation theatre for Laparoscopic Surgery, where he was given general anaesthesia by Dr. K.N Bubber (M.D in Anaesthesia) and thereafter, under general anaesthesia the complainant was taken for laproscopy and his epigastric and umbilical ports were made. On inspection during laproscopically, it was found that there were dense

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adhesions at gall bladder forsa site among different organs like stomach. Dense Adhesions were also noticed with omentium and stomach and Transeverse colon. It was found that in such condition Laproscopic Surgery was not possible, so decision was made to convert Laproscopic Surgery into open Surgery just to avoid any harm to the patient and his organs. Decision to convert to open surgery was informed to the complainant’s relatives by opposite party at the time of surgery after 10-15 minutes. The open surgery was started at the same time and at the same sitting under the same anaesthesia itself after consent of the relatives of the complainant. During open surgery all separable omental and transverse colon adhesions were separated. Even after found that gall bladder couldn’t be visualized. It was decided there and then that further separation of adhesions from vital structures was not possible without causing potential harm to vital structure and organs. Therefore, it was decided to abandon the operation in the best interest of the complainant’s life and these facts were immediately informed to the complainant’s relatives by the opposite party and closure of the wound was done immediately and the complainant was deanaesthetized and extubated by anesthetist after consent of the relatives of the complainant and was shifted to his room in a fit and stable condition.  Dr. K.N Bubbar was the anaesthesia expert, who gave general anaesthesia  (complete anaesthesia) before the start of the operation and he had recorded

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his anaesthesia notes in the indoor file,  which was enclosed herewith this reply. The complainant was followed up in the ward where he was stable and fit and was discharged as referred in a healthy condition on dated 17.4.2012 with advise to get himself investigated further and get his surgery done at some higher centre or institute and after 17.4.2012 the complainant never reported to opposite party No.1 again for further treatment. Opposite party No.1 has not committed any medical negligence or deficiency in service. Other allegations of the complaint have been denied and dismissal of the complaint has been prayed for.

3.                In its written reply, the opposite party No.2 has pleaded that no cause of action has arisen to the complainant against opposite party No.2. No original insurance policy and other relevant documents have been supplied by the complainant to opposite party No.2 and without production and supply of original insurance policy in question, there was no privity of contract between opposite party No.2 and opposite party No.1. As per the policy terms pertaining to the doctors indemnity insurance, it is mandatory to immediately inform the insurance company regarding any claim, but in the preset case, neither the complainant nor opposite party No.1 has ever informed opposite party No.2 regarding any negligence in the treatment. Opposite party No.2 is liable to be deleted from the array of the opposite parties as there was no allegation against him. Other allegations of the

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complaint have been denied and dismissal of the complaint has been prayed for.

4.                Learned counsel for complainant tendered into evidence Ex. C-1 to Ex. C-13 and closed complainant evidence on behalf of the complainant. On the other hand, learned counsel for opposite party No.1tendered into evidence Ex.OP-1/1 to Ex. OP-1/17 and closed evidence on behalf of opposite party No.1. On the other hand, learned counsel for opposite party No.2 tendered into evidence Ex. OP-2/1 to Ex. OP-2/3 and closed evidence on behalf of opposite party No.2.

5.                We have heard the learned counsel for parties and have also gone through the file.

6.                It is the admitted case of the parties that the complainant was suffering from Gall Bladder stones and he was admitted in the hospital of opposite party No.1 on 13.4.2012 for Laproscopic Surgery of his Gallbladder. The grievance of the complainant is that on he same day i.e. on 13.4.2012, opposite party No.1 Dr. Vinod Pal Sethi started his Laparoscopic Surgery, but after half an hour he told family members of the complainant that he could not trace out Gall Bladder of the complainant and he had to conduct open surgery, which he started without calling Anesthesia expert and again after 10-15 minutes, he told family members of the complainant that he could not trace out Gall Bladder of the

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complainant and to immediate shift the complainant to some higher centre. The complainant has further averred that he remained admitted in the hospital of opposite party No.1 till 17.4.2012, opposite party No.1 discharged the complainant by way of issuing prescription slip dated 17.4.2012 and further and proper treatment of the complainant could not be conducted from any expert doctor due to non-availability of his treatment summary and medical record, which was wrongly and illegally withheld by opposite party No.1 and due to negligence on the part of opposite party No.1, he is unable to spend his healthy life and to do usual work of his routine matter. The plea of opposite party No.1 is that under general anesthesia, the complainant was taken for laparoscopy and on inspection during laparoscopically, it was found to have dense adhesions at gall bladder forsa site amount different organs like stomach, omentium and transeverse colon etc. and in such condition Laparoscopic Surgery was not possible and decision to convert Laparoscopic Surgery into open surgery was taken just to avoid harm to the complainant and his organs. Opposite party No.1 has produced medical literature on the file to prove that the decision to convert Laparoscopic Surgery into open surgery was taken by opposite party No.1 according to the standard procedure required to be done in such cases. In the medical literature produced by opposite party No.1, in has been concluded that the most common reasons for conversion

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to open cholecystactomy are inflammation and adhesions and detailed preoperative ultrasound evaluation of gallbladder in patients destined for laparoscopic cholecystectomy is of little value in screening for difficult or unsuitable cases. It has been further mentioned in the above referred to medical literature that adhesions are internal hands of scar tissue that form between organs and they are caused by infection/inflammation; adhesions are very difficult to diagnose because they do not show up readily on X-ray or other tests such as MRI, CT, ultrasound or colonoscopy; and that conversion to the open procedure should not be taken as a failure or a complication on the part of the surgeon. A perusal of copy of ultrasound report placed on the file by the complainant as Ex.C-3 to Ex.C-6 and Ex.C-8 to Ex.C-11 reveals that findings were consistent of Cholecystitis with Cholelitheasis. A perusal of ultrasound report dated 13.4.2012 Ex.C-9, which was conducted on the same day of surgery of the complainant, clearly reveals that there were present multiple echogenic masses with distal acoustic shadowes; GB wall was thickened and minimal fluid was also present around the gall bladder. Opposite party No.1 has also placed on the file affidavit of Dr. K.N. Bubbar, M.D. Anaestheia, Abohar as Ex.OP-1/7, vide which the said deponent has deposed that he is practicing as private anaesthetist in Abohar since his retirement in the year 2008. On 13.4.2012, he was called in the hospital of opposite party No.1 to give

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anaesthesia in operation of the complainant by Surgeon Dr. Vinod Pal Sethi; the patient was given general anaesthesia as the patient was to be taken for the laparoscopic cholecystectomy, which is considered as a major surgery; the patient was induced and maintained general anesthesia by Boyle’s Apparatus and he was continuously monitored by him personally by way of manual and electronic means; during the course of surgery, the surgeon Dr. Vinod Pal Sethi found difficulty to do the surgery laparoscopically, so decision was made to convert Laparoscopic Surgery into open surgery just to avoid any harm to the patient/complainant. Thereafter, the open surgery was started by the surgeon with the consent of the relatives of the patient by opening  of the abdomen layer by layer, but again the surgeon found it difficult to do the cholecystectomy by open surgery. Thus, the cholycystectomy could not be possible by any of the means and therefore, the surgeon decided to abandon the surgery and closed the abdomen and during the entire period from induction of the General Anaesthesia, which was given for the laparoscopic and open cholycystectomy and up till the closing of the abdomen, the patient remained thoroughly anesthetized and the relevant notes of the anesthesia were mentioned by him on the opposite party hospital file. This deposition of Dr. K.N. Bubbar has not been controverted by the complainant in an unequivocal terms. Therefore, opposite party No.1 has rightly converted

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Laparoscopic Surgery of the gall bladder of the complainant into open surgery according to standard medical practice. The complainant has not produced on the file any expert opinion or medical literature to the effect that the procedure done by opposite party No.1 was wrong and was not according to standard protocol. If the doctor taking into overall facts and circumstances, to the best of his knowledge and ability, has performed the procedure according to standard medical practice and the operation becomes unsuccessful, then it cannot be said that the doctor was negligent in giving the treatment to the patient. Even otherwise, the burden to prove the negligence is upon the person, who alleges it and the complainant has failed to discharge this burden. As observed above, the choice of treatment and procedure is done by the doctor according to the status/condition of the patient. Merely because another method was available to the doctor, it cannot be said that the method and procedure performed by the doctor was wrong. The complainant has failed to prove a case of medical negligence against opposite party No.1. Accordingly, the present complaint is hereby dismissed. No order as to costs. File be consigned to the record room.   

Announced                                                                                    18.2.2015

                                                    (Gurpartap Singh Brar)

                                                                                         President

                                                                                   (Gyan Singh )

                                                                                       Member