Complainant Amarjit Kaur through the present complaint filed U/s 12 of the Consumer Protection Act, 1986 (hereinafter called the Act) has prayed for issuance of the necessary directions to the titled opposite parties to pay her Rs.15,00,000/- as damages caused to her health coupled with financial loss, mental agony and harassment due to the medical negligence on the part of the opposite parties.

2.       The case of the complainant in brief is that after getting her ultrasonography on 22.7.2001 from Sharma Diagnostic Center Pathankot she found large size calculus in her gall bladder and thus she consulted OP2 doctor at the OP1 hospital on 22.7.2001 who advised her to gall bladder surgery; removed her gall bladder and discharged her on 1.8.2007. The complainant has further stated that after the surgery she has been feeling sick and physical weak through out the intervening period and has been contacting the OP2 doctor off and on as follow-up measures. Finding no relief and with the enhanced pain in her stomach she approached the EMC Hospital at Amritsar who performed the further-surgery upon her removing the left-over stub of her operated gall bladder in the year 2001. After this surgery she felt relieved and since then she has been having an average health after a period of 13 years of pain and agony. Thus, she has preferred the present complaint seeking the desired relief of the compensation from the OP2 doctor and the OP1 hospital for exhibiting medical negligence in the year 2001 while performing gall bladder surgery upon her.

3.       Upon summons/notice the opposite parties appeared through their counsel and filed their joint written reply taking the preliminary objections that the complainant has not approached the Forum with clean hands. She has concealed the material facts in her complaint and thus the same being false, frivolous and vexatious need be dismissed on this count alone. Upon merits, the OP2 doctor  has stated that the surgery performed upon the complainant in the year 2001 has been a successful procedure and it was only because of the same that she has survived during this period of 13 years and has been leading an average normal life through out. However, the complainant being an elderly lady in her advance age has been suffering normal ailments & pain etc. as a result of her ill-health and as such he (OP2 doctor) alongwith OP1 hospital cannot be held liable for the same. Lastly the complaint has been prayed to be dismissed with costs in the interest of justice.

4.       Counsel for the complainant tendered into evidence affidavit of complainant Ex.CW1/A alongwith other documents Ex.C1 to Ex.C9 and closed the evidence.

5.       Opposite parties tendered into evidence affidavit of Dr. Avinash Chowdary Ex.OP-1 alongwith copy of insurance Ex.OP-2 and closed the evidence. 

6.       We have duly considered the pleadings of both the parties; heard the arguments advanced by their counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the purpose of adjudication of the present complaint.                     

7.       We find that the simple grievance of the present complainant (in layman’s language) has been that the OP2 surgeon while performing ‘Cholecystectomy’

(surgical-removal of Gall-Bladder) upon her in July’ 2001 had left its stem neck of the gall-bladder) within, un-removed and negligently stitched with an iron-pin and that ‘troubled’ her throughout till finally detected on 15.04.2014 at the Nijjar Scan Centre (Amritsar) and surgically removed on 19.04.2014 at EMC Hospital (Amritsar). However, the complainant has failed to prove her allegations through some acceptable cogent evidence. After her discharge on 01.08.2001 (as per the Ex.C1, comprising of 11sheets) from the OP1 Hospital and the subsequent follow-ups on 06.08.2001, 06.09.2001 and 04.10.2001; she visits OP2 Hospital again for treatment of routine-infection etc on 31.10.2002 followed-up on 14.11.2002 and then after 3½ years on 22.02.2006, then on 20.12.2007, again on 08.07.2009, 19.08.2009 and finally the Amritsar Hospital in April’ 2014. On her visit to the OP2 Hospital on 19.08.2009 she was found to be ‘hyper-sensitive’ and had to be put on I.V. (intra-veins’) fluid. Such, as above, time-gapped health ailments/ post-surgery follow-ups/check-ups etc in advanced-age (nearing 60 years or so) are to be taken in ‘usual-stride’ and moreover nothing un-usual post-surgery complication etc has been pointed out, here. It has also not been shown/proved that the gall-bladder was negligently stitched with an iron staple-pin and left within and the same has been against the acceptable surgery practice and procedure etc. Even the post surgery USG (ultra-sound graphics) on record does not point out any ‘un-usual’ situation & confirm the ‘surgery’   (Cholecystectomy) having duly done.  On    the    other     hand,   the    OP2  doctor (appearing in person)  had  pleaded   that  during  the   ‘Cholecystectomy’  procedure stem (neck of the gall-bladder) is left within                                              ‘knowingly’ (and advisably, too) as it shall not be advisable to completely raze                                                                               (graze away) the gall-bladder and ‘damage’ the adjoining vital organs like Pancreas, CBD (common bile duct), Liver etc. The OP2 doctor has also produced an authenticated paper on ‘surgery of cholelithiasis’ that amongst many other advisories also states as: “The stone must be released, by a lateral incision to minimize any risk to the common hepatic duct, but removal of the gallbladder neck will probably be unwise.” We are also guided by a plethora of verdicts of the honorable superior courts that favor ‘an independent & case-specific (on the spot) decision by the performing surgeon, once his credentials (education, knowledge, skill & exposure etc) are established. The courts normally will not interfere in the minute details of ‘surgical-procedures’ that is decidedly a valued ‘prerogative’ of the performing surgeon and he shall be the best judge even under the situational emergencies unless proved otherwise. Moreover, a normal ‘post-surgical’ life (may be ‘living’ in many cases) for 13 blessed years (with many more coming ahead) shall certainly support the addressing: ‘the successful-surgery’ to the one performed by the OP2 Surgeon on the way back in the year 2001. The ups and downs in health (as available on the records of proceedings) are an integral part of ‘living’ (like hues in nature) and need not be allowed to shadow our ‘positive-attitude’ in life for our own eternal good. Amen 

8.       In the light of the all above, we see no merit in the present complaint under the adjudicatory Act and thus ORDER for its dismissal with however no order as to its costs.

9.       Copy of the order be communicated to the parties free of charges. After

compliance, file be consigned to records. 

                                                                                                                               (Naveen Puri)                                                                         President.

ANOUNCED:                           (G.B.S.Bhullar)                   (Jagdeep Kaur)

FEB. 9, 2015.                                    Member.                               Member.

*YP*