Rajasthan

StateCommission

A/102/2018

Santokba Durlabhji Memorial Hospital and Medical Research Institute - Complainant(s)

Versus

Shri Sheshkaran s/o Champalal - Opp.Party(s)

Ashutosh Bhatia

04 Apr 2019

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

FIRST APPEAL NO: 102/2018

 

Santokba Durlabhji Memorial Hospital & Medical Research Institute, Bhawani Singh Marg, Jaipur & ors.

Vs.

Sh.Sheshkaran s/o Champalal r/o village Moriyana, Post Modikalan via Harsor, Tehsil Riyabadi Distt. Nagaur.

 

Date of Order 4.4.2019

 

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

Mrs. Meena Mehta -Member

 

Mr.Ashutosh Bhatia with Mr.Ritesh Dhingra counsel for the appellants

Mr. Somdutt Sharma counsel for the respondent

 

BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

 

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This appeal is filed against the order of the learned District Forum, Jaipur 4^th dated 10.1.2018 whereby the claim is allowed against the appellants.

 

The contention of the appellant is that no deficiency has been pleaded by the complainant. Only this much has been said that surgery was incomplete and valve has not been changed. During the course of surgery it was found that Ventricular Septal Defect (VSD) was very small and there was no need to close it. Hence, the appellant is not deficient and the claim should have been dismissed.

 

Per contra the contention of the respondent is that claim has rightly been allowed and the appeal be dismissed.

 

Heard the counsel for the parties and perused the impugned judgment as well as original record of the case.

 

The appellant has submitted application for taking medical documents on record. The contention of the appellant is that record was available with the complainant and he should have file it but as the judgment has been passed against him

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on non-filing of the treatment documents, now he is filing the documents.

 

It cannot be disputed that treatment documents are only with the appellant. The complainant could file only discharge summary which he has filed. When documents were with the appellant which were relevant to the issue, it was the duty of the appellant to file it but no reason has been assigned by the appellant for not filing the documents before the Forum below. Hence, the application of the appellant is not acceptable.

 

The contention of the appellant is that complainant has not pleaded any deficiency but this contention is not acceptable as it was been specifically pleaded that surgery was for Patent Ductus Arteriosus (PDA) and for change of valve leakage and in the reply the appellant himself has admitted the fact that the surgery was for Perimembranous Ventricular Septal Defect and for VSD closure advise was also given.

 

Further the contention of the appellant in its reply was that he tried to search out the VSD but it was only of 2 mm size and closure was not needed. Hence, no deficiency has

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been committed by him. To support this contention the appellant should have filed the treatment documents and operation notes but nothing has been brought on record. Now under the application he submitted the documents wherein in operative summary it has been stated that VSD not found and it is of very small size 2mm size but to utter surprise of this Commission these facts have not been stated in the discharge summary which has been made available to the complainant. In discharge summary which was furnished to the complainant in operative notes only this much has been said that closure of PDA using 3 interrupted pledgetted sutures on pulmonary side and on the strength of above operation notes the Forum below has rightly concluded that the appellant has not tried to close the VSD .

 

The appellant has submitted 17^th Edition Harrisons Internal Medicines Part 9 Disorders of the cardiovascular system and submitted that when VSD is less than 3 mm there is no need to close it and it rarely require surgical reintervention. There could not be any doubt about this study but here in the present case there is no evidence to the effect that VSD was only of 2 mm. In reply to the complaint specific

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contention has been raised that Dr.Milind Srivastava has conducted ecocardiogram for the location and size of the VSD but no such ecocardiogram is submitted by the appellant before the Forum below and even the State Commission alongwith other treatment documents which were submitted with the application for taking documents on record. Even the affidavit of Dr.Milind Srivastava has not been submitted. Hence, it can very well be concluded that this contention has only been designed by the appellant to save his deficiency.

 

The appellant has relied upon the judgment passed by the apex court in Civil Appeal No. 5798/2008 Bachhaj Nahar Vs. Nilima Mandal wherein suit for declaration and possession the apex court was of the opinion that case should be pleaded specifically but here in the consumer complaints the strict rules of pleading are not applicable and further more the appellant himself has came out with the contention that they had tried to close the VSD and it was very small, need not be closed but to support this contention no evidence has been submitted.

 

The appellant has relied upon II (2000) CPJ 345 N.S.Sahota Vs. New Ruby Hospital where general preposition

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has been laid down that burden of proving negligence is upon the complainant and as no expert evidence was produced the complaint was dismissed but here in the present case the appellant himself has pleaded the facts of the operation and remained unsuccessful to support the procedure by medical evidence.

 

Reliance could be placed on CPR 2018 (2) 883 (NC) Dr.Sudhir Mohan Kant Vs. Ramodhan Singh where the National Commission has held that where there is negligence on face of case and speaks themselves no expert evidence or opinion is required.

 

The appellant has also relied upon the judgment passed by the apex court in Appeal (Crl.) 144/2004 Jacob Mathew Vs. State of Punjab and 2010 1) RLW 722 (SC) Kusum Sharma Vs. Batra Hospital & Medical Research Centre where general preposition regarding medical negligence has been laid down.

 

In view of the above, the Forum below has rightly

 

 

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concluded that the appellants are deficient. There is no merit in this appeal and stands dismissed.

 

(Meena Mehta) (Nisha Gupta)

Member President

 

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