Madhya Pradesh

StateCommission

2106/06

Maheswari Nursing Home - Complainant(s)

Versus

Sh. Hemant Kumar Jain, Sapna, Neeraj, Jyoti, Shilpi, Neetu, Deepa - Opp.Party(s)

Sh. ANIL GUPTA

03 Aug 2022

ORDER

M. P. STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                         

                             PLOT NO.76, ARERA HILLS, BHOPAL

 

                                      FIRST APPEAL NO. 2106 OF 2006

(Arising out of order dated 31.08.2006 passed in C.C.No.216/2001 by District Commission, Gwalior)

 

1. MAHESHWARI NURSING HOME,

    85, MAHARANI LAKSHMIBAI COLONY,

    LASHKAR, GWALIOR (M.P.)

 

2. DR. V. K. MAHESHWARI,

    S/O SHRI MURLIDHAR MAHESHWARI,

    MAHESHWARI NURSING HOME,

    85, MAHARANI LAKSHMIBAI COLONY,

    LASHKAR, GWALIOR (M.P.)

 

3. DR. RAKESH MAHESHWARI,

    PARWATI NURSING HOME,

    JAIL ROAD, MORENA (M.P.)                                                                   … APPELLANTS.

 

                  Versus

 

1. HEMANT KUMAR JAIN,

    S/O SHRI GULABCHAND JAIN,

 

2. KU. SAPNA JAIN,

    D/O HEMANT KUMAR JAIN

 

3. NEERAJ JAIN,

    S/O HEMANT KUMAR JAIN

 

4. KU. JYOTI JAIN,

    D/O HEMANT KUMAR JAIN

 

5. KU. SHILPI JAIN,

    D/O HEMANT KUMAR JAIN

 

6. KU. NEETU JAIN,

    D/O HEMANT KUMAR JAIN

 

7. KU. DEEPA JAIN,

    D/O HEMANT KUMAR JAIN

 

    ALL R/O JAIN BAGICHI,

    AMBAH ROAD, MORENA (M.P.)                                                      …. RESPONDENTS.

 

 

  

     

               

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BEFORE :

            HON’BLE SHRI A. K. TIWARI                : PRESIDING MEMBER

            HON’BLE DR. SRIKANT PANDEY        :          MEMBER

            HON’BLE SHRI D. K. SHRIVASTAVA   :          MEMBER

                     

COUNSEL FOR PARTIES :

                Shri Sandeep Guru, learned counsel for the appellants.

           Shri Saurabh Kumar Jain, learned counsel for the respondents.

 O R D E R

(Passed On 03.08.2022)

                                The following order of the Commission was delivered by A. K. Tiwari, Presiding Member:             

                   This is an appeal by the opposite parties/appellants against the order dated 31.08.2006 passed by the District Consumer Disputes Redressal Forum, Gwalior (for short ‘District Commission) in C.C.No.216/2001 whereby the complaint filed by the complainants has been allowed.

2.                For convenience the parties herein referred to as per their original position in the complaint, Maheshwari Nursing Home as the opposite party no.1, Dr. V. K. Maheshwari as opposite party no.2, Dr. Vinod Kumar Jain as opposite party no.3 and Dr.Rakesh Maheshwari as opposite party no.4.

3.                The brief facts giving rise to the complaint before the District Commission are that Smt. Manju Jain (hereinafter referred to as patient) wife of complainant no.1 and mother of complainant no. 2 to 7 on 31.03.2000 having complaint of abdominal pain consulted Dr. Rakesh Maheshwari

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opposite party no.4 at Morena on whose recommendation patient consulted the opposite party no.1 hospital on 02.04.2000 at Gwalior where after certain tests it was found that she was having stones in gall bladder, thereafter the opposite party no.2 and 3 doctors performed surgery and she was discharged on 07.04.2000. But the problem remain persisted and there was stomach bloating and on consultation it was told that it is because of operation and it will subside after some time but she could not get relief. Thereafter she consulted Dr.R.K.Gupta at Morena who after getting ultrasonography told her that operation was not successful and there are stones in the gall bladder. It is alleged that again she consulted to opposite party no.2 who after getting ultrasonography accepted that there was mistake in the operation and he prescribed some medicines but she could not get relief.

4.                Thereafter she consulted Dr. S. K. Shrivastava, Gwalior who told that due to some cut in any duct while operation stomach fills with water. Dr. Shrivastava advised to consult at some higher centre. Thereafter she consulted Loknayak Jai Prakash Narayan Hospital, Delhi on 16.06.2000 where tests were conducted and Dr. Praveen Gulati gave reports. Ultimately she succumbed on 21.06.2000 at Loknayak Jai Prakash Narayan Hospital Delhi. The complainants therefore filed a complaint before the District Commission alleging deficiency in service on part of opposite party doctors. 

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5.                The opposite parties resisted the complaint stating that since the patient was treated free of cost, therefore, the complainants are not consumers. The operation was not performed by Dr. Vinod Jain opposite party no.3 but was performed by Dr. V. K. Maheshwari opposite party no.2 and Dr. Rakesh Maheshwari, opposite party no.4. It is submitted that operation theatre of Maheshwari Nursing Home is well equipped with modern facilities and the opposite party no. 2 and opposite party no.4 doctors performed operation successfully. After operation her ultrasonography was found normal and due to that reason she was discharged on 07.04.2000. Reason of death was probably cut in common bile duct but no assertive opinion in this regard was given. No postmortem was conducted. The opposite parties had not committed any negligence or error while treating the patient and the complaint is liable to be dismissed.  

6.                The District Commission after appreciation of evidence available on record found the opposite parties-doctors negligent in performing operation and guilty of deficiency in service. The District Commission therefore allowed the complaint and directed the opposite parties-doctors to pay lump sum compensation of Rs.3.00lac to the complainants.

7.                Heard learned counsel for the parties. Perused the record.

8.                Learned counsel for the opposite parties/appellants argued that the District Commission directed to file the ultrasonography report of Dr.

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Raizada then opposite parties have filed affidavit of Dr. Rakesh Raizada in which he stated that the ultrasonography report of patient after operation was normal and at that time there was no ascites even then the District Commission doubted on the said report. The District Commission also not considered the ultrasonography reports of Dr.Suresh Gupta and Dr. S. K. Malhotra.  From the evidence of Dr.S.K.Shrivastava it is not proved that there was negligence on part of the treating doctors. If the problem persists after operation then it cannot be said that it is because of negligence of doctors. The District Commission has not considered the documents filed on record. It is therefore prayed that the impugned order be set-aside and the appeal be allowed.  

9.                Learned counsel for the respondents/complainants argued that it is proved from the documents and medical reports that the doctors while performing operation made a cut in common bile duct because of which fluid gathered in stomach and became ascites therefore the doctors have committed negligence and guilty of deficiency in service. He argued that the District Commission has rightly appreciated the facts and circumstances and the evidence available on record and has rightly allowed the complaint and directed the opposite parties to pay compensation to the complainants. He therefore prayed that the appeal deserves to be dismissed.

 

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10.              We have gone through the record. The complainants had filed their affidavits and the documents C-1 to C-45 including different reports and death certificate. The opposite parties have filed affidavits of Dr. V. K. Maheshwari, Dr. Rakesh Maheshwari, Dr. Vinod Kumar Jain, Dr. Vishwas Nawkar and Dr. D. K. Grover along with documents R-1 to R-10 including admission & operation record, treatment record and medical literature.

11.              Dr. S. K. Shrivastava MS (Retired Professor, Surgery) was called and examined as an expert.

12.              First of all, we would like to deal with the issue raised by the opposite parties that the complainants are not consumer as they had treated the patient free of charge. In this aspect we would like to mention the pronouncement of Hon’ble Supreme Court in Indian Medical Association Vs V. P. Shantha III (1995) CPJ 1 (SC) in which the Apex Court laid down that “Where the service is rendered at a government hospital/health centre/dispensary on payment of charges and also rendered free of charge, then it would fall within the ambit of expression service as defined under Section 2(1)(o) of the Consumer Protection Act, 1986.”  It is not a case of the opposite parties that they are treating the patients in their hospital totally free of charge.

13.              In view of the aforesaid, in the present case even if the patient was treated free of charge, her family members are consumer as defined

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under the Act. The District Commission has rightly proceeded with the case dismissing the objection raised by the opposite parties.

14.              It is an admitted fact that the patient admitted in the opposite party no.1 hospital on 02.04.2000 where she underwent laparoscopic cholecystectomy on 03.04.2000 by the opposite party 2 and 4 doctors and she was discharged on 07.04.2000. It is submitted by the opposite parties doctors that after operation on 06.04.2000 Dr. Rakesh Raizada performed ultrasonography and on the basis of his report he opined that there was no problem and no ascites was there. Thereafter USG was performed at different centes and places and the USG report dated 01.05.2000 of B. L. Medical Centre, Morena (C-17), USG report dated 10.05.2000 of Asopa Hospital & Research Centre, Agra (C-19) and USG report dated 24.05.2000 of Delhi Ultrasound Diagnostic Centre, Gwalior (C-21) confirmed the fact of Ascites, Free fluid is seen in peritoneal cavity. Thereafter MRI was performed at New Delhi. On going through the document C-35, we find that on 16.06.2000 MRI was conducted by Dr. Parveen Gulati at MR Centre, New Delhi and it was found that while performing cholecystectomy there was post-operative leakage in common bile duct. Dr. Gulati opined that MRI findings are suggestive of postoperative cholecystectomy with postoperative leak in the common bile duct (CBD) with gross ascites. 

 

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15.              Dr. Parveen Gulati in his MRI report dated 16.06.2000 (C-35) has clearly mentioned that “The gall bladder is not visualized-post operative. There is gross ascites.  There is lowintense signal area in the mid CBD about 2.3 cms above the lower end, in view of the history this may be the site of leakage.”

16.              In the death certificate issued by Dr. Jai Bikh Chandani of Loknayak Jai Prakash Narayan Hospital, New Delhi dated 21.06.2000 (C-33)  cause of death is mentioned as “Post-Cholecystectomy CBD Tear with Ascites with Hypovolemic Shock.” 

17.              As per order sheet dated 07.08.2006 of the District Commission, Dr. S. K. Shrivastava MS (Retired Professor, Surgery) was called and examined as an expert, who after examination of all the medical papers made statement in paragraph 4 and 7 which are relevant for just decision of this case and are also relevant to decide whether operating doctor has committed negligence while operation. In his examination he had stated all the places from where leakage was possible He had stated that leakage might be from side of ligachar or gall bladder band, however, he further stated that leakage is not possible unless there is damage. From the MRI report of Dr.Gulati also it is clear that leakage is in the mid CBD about 2.3 cms above the lower end and not from the side of ligachar or gall bladder band.

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18.              From the above USG and MRI reports and cause of death shown in the death certificate it is well established that there was post-operative leakage from the common bile duct and ascites. In the medical book Surgical Laparoscopy, Second Edition, Edited by Karl A. Zucker filed by opposite parties as (R-9) at page 144 in last two lines (right hand side) it is clearly mentioned that “Bile leaks may occur from the gall bladder bed, cystic duct or as a result of injury to the common bile duct.” Meaning thereby the patient was suffering from ascites as a result of injury to common bile duct during cholecystectomy which shows that the operating surgeon must have committed negligence while performing cholecystectomy.

19.              However, in this context, we examine the report of Dr. Rakesh Raizada (C-17) as also his affidavit, who opined that after operation there was no ascites. In his affidavit, he has stated that he passed MBBS in the year 1986 from G.R.Medical College, Gwalior and had obtained DRMI (Diploma in Medical Radiology and Electrotherapy) in the year 1989 from G.R.Medical College Gwalior and got ultrasound training from Moolchand Hospital, New Delhi and Cancer Hospital Gwalior. He also claimed that he had his ultrasound centre in the name and style ‘Konark Ultrasound Clinic’ since 1997 at Gwalior in which there are modern and standard quality of machines. He also claimed that he is giving reports after getting ultrasonography and other tests of the patients very minutely and he also

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maintained the record. Further in paragraph 4 of his affidavit he had stated that after operation of Smt. Manju Jain, he had conducted ultrasonography

and the report was normal and he gave the report on a simple paper after signing the same to the patient.

20.              We have gone through the report (C-12) provided by him to the patient we find that he had mentioned no ascites. Now it is astonishing to mention here that the Dr.Rakesh Raizada who claimed himself to be a qualified doctor and is having well equipped ultrasonography centre, and who claimed to give reports after minutely examination of the patients and keeping the record, then why he gave an important report on a simple paper and when he knew that he has to perform ultrasonography why he did not bring his letter pad. Although there is no date, seal and proper signature on the said report (C-12) submitted by him and it appears from the paragraph 3 of his affidavit that on call from Dr. V. K. Maheshwari he performed ultrasonography of the patient on 06.04.2000 free of cost. If he performed ultrasonography in Maheshwari Nursing Home (opposite party no.1) at the instructions of Dr. V. K. Maheshwari (opposite party no.2) he could have given his report on the letter head of the opposite party no.1 hospital itself, if he could not bring his letter head. In such circumstances, his report cannot be said to be genuine. Dr. Rakesh Raizada appears to be very interested in submitting his report and by way of his report and his affidavit he tried to

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justify that there was no negligence on part of the opposite party doctors while performing the operation. Dr. Rakesh Raizada has given a very important report on a simple paper and opined that there was no ascites. In our considered opinion, that report cannot be said to be genuine and he is hereby instructed not to give important reports in such a formal manner in future. We cannot help mentioning here that signatures of Dr. Rakesh Raizada on his affidavit dated 28.08.2006 (at page 255-256) as also on the report given by him (C-12) seems to be different.    

21.              It is also pertinent to mention here that the opposite parties had filed affidavits of Dr. Vishwas Nawkar and Dr. D. K. Grover in support of their case as their witnesses. On going through both the affidavits we find that except paragraph 1 in which the doctors have mentioned about their degree and experience, all contents of rest of the paragraphs of their affidavits are similar word by word stating that the opposite parties have not committed any negligence in treatment of the patient.  This clearly goes to show they are highly interested in justifying that the opposite parties doctors were not negligent. This shows their improper act while executing affidavits.

22.              In view of the above discussion, it is well established that the patient deceased Smt. Manju Jain suffered “Post-Cholecystectomy CBD Tear with Ascites with Hypovolemic Shock”  because of negligence of opposite party doctors while performing cholecystectomy which was the

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cause of death also. She was operated on 03.04.2000 and died due to negligence of doctors on 21.06.2000 within a short period of two months. During her life she suffered a lot and her family members also had to incur expenses in going and running to Agra and New Delhi for her treatment.  Had she remained alive and cured she would have still lived with her husband and children i.e. the complainants. For loss of consortium and solace the lifelong mental agony caused to the complainants cannot be measured in terms of money but still a very reasonable amount of Rs.3,00,000/- has been awarded by the District Commission which in our opinion is just and proper in absence of any appeal preferred by the complainants.

23.              The District Commission has considered all the aspects and evidence available on record and passed a well-reasoned order.  We do not

find any illegality or perversity in the impugned order. Accordingly it is maintained.

24.              In the result, the appeal being devoid of any merit is hereby dismissed.  No order as to costs. 

           

         (A. K. Tiwari)     (Dr. Srikant Pandey)   (D. K. Shrivastava)

   Presiding Member            Member                     Member