BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.507 of 2015

Date of Instt. 01.12.2015

Date of Decision: 21.06.2017

Ramesh Kumar aged about 62 years son of Sh. Lal Chand resident of 77/1, Green Model Town, Jalandhar. ..........Complainant

Versus

1. Tagore Hospital & Heart Care Centre Pvt. Ltd., Banda Bahadur Nagar, Mahavir Marg, Jalandhar through its MD Dr. Vijay Mahajan (Medical and Heart Specialist).

2. Dr. Vijay Mahajan (Medical and Heart Specialist) cum Managing Director of Tagore Hospital & Heart Care Centre Pvt. Ltd., Banda Bahadur Nagar, Mahavir Marg, Jalandhar.

3. Dr. Ravi Seth, M.S. General & Laparoscopic Surgeon, Tagore Hospital & Heart Care Centre Pvt. Ltd., Banda Bahadur Nagar, Mahavir Marg, Jalandhar.

.........Opposite parties

4. Food Corporation of India District Office, opposite Tehsil complex, Jalandhar through its Area Manager.

…..... Performa respondent

5. The Oriental Insurance Company Ltd. Divisional Office, 32 G.T. Road, Jalandhar.

….....Additional Opposite Party

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Sh. Parminder Sharma (Member)

Present: Sh. Vikas Sharma, Adv. Counsel for the complainant.

Sh. RS Arora, Adv. Counsel for OP No.1 to 3.

OP No.4 exparte.

Sh. Brijesh Bakshi, Adv Counsel for OP No.5.

Order

Karnail Singh (President)

1. The instant complaint presented by complainant Ramesh Kumar, wherein alleged that he is retired from Food Corporation of India (hereinafter referred as FCI) as Manager General in August, 2013. The OP No.1 is a Pvt. Ltd. Hospital and the OP No.2 is its Managing Director who is the Incharge and responsible person for all the acts and conducts of his hospital and its employees and the OP No.3 is working as a Laparoscopic/General Surgeon with the OP No.1 and 2 and are thus jointly and severely liable for all their acts and conducts. Whereas, the OP No.4 is the employer of complainant who has been impleaded as necessary party to this case, just to avoid any technical objections, but, no relief has been claimed against FCI i.e. OP No.4 under the present complaint. However, it is claimed from the FCI that the empanelment of the OP No.1 to 3 may please be ordered to be cancelled/set aside by keeping in view their negligent acts and conducts.

2. The above said OP No.1 Hospital has been appointed as empanelled hospital of FCI i.e. OP No.4 vide agreement of “Direct Payment System Scheme” and the complainant being an employee of FCI used to get treatment of his wife i.e. Meena Kumari for her cardiac problem from the OPs.

3. That unfortunately in the month of March 2014, the wife of the complainant, suffered with severe abdominal pain and since she was already under treatment for cardiac problem with OPs, hence the complainant approached to the OPs for her check up of her abdominal pain on 23.03.2014. Due to pain, the complainant's wife was admitted in the hospital from 23.03.2014 to 25.03.2014 and on the advice of OP No.3, she underwent for an ultrasound of her abdomen on 24.03.2014 and it was reported that she had problem of Cholecystitis with cholelithiasis with sludge & fatty changes of liver and abdominal lymphadenopathy and after seeing the ultrasound report, the OP No.3 told the complainant and his wife that she is suffering from stones and infection in the gallbladder generally known as Cholecystitis with cholelithiasis and that she would require surgery for the same. Whereas the factum of presence of Lymphadenopathy in the report of radiologist dated 24.03.2014 was kept concealed by the OPs from the complainant and his wife though it is specifically mentioned in the said report that radiologist has seen presence of Lymphadenopathy in her ultrasound. The copies of discharge summary and ultrasound report dated 24.03.2014 are enclosed. As per medical terms the word Lymphadenopathy refers to the enlargement of lymph nodes (glands) in a body of the patient. Normally, in the body of patient, these glands function to limit the spread of any infection or Tumors from the area affected by it to the whole body of the patient. In a way, these Lymph nodes act like protective barriers in the human body. And the enlargement of these Lymph nodes in the body of patient signifies that the patient is having some major infection or tumor in the affected area. Now as per the report of ultrasound dated 24.03.2014, the wife of complainant was also suffering from Lymphadenopathy which clearly means that the complainant's wife could either have major infection or could have Tumor in her Gallbladder as she already had infection of the gall bladder but the presence of this Tumor (Cancer) of the gall bladder has been completely ignored by the doctor i.e. the OP No.3.

4. That as per the medical books, prevalent in India the maximum area of Northern India, especially Punjab has the second highest incidence of Cancer of Gall Bladder in the whole World and the first position is held by Chilie and as per standard medical protocol, any patient presenting with lymphadenopathy of the upper abdomen alongwith gall bladder stones needs to be evaluated with tests like FNAC in which some tissue is taken from the lymph nodes and then seen under microscope to detect any tumor. This evaluation becomes all the more important in Punjab in view of the high incidence of Cancer of Gall Bladder in our state. The copy of the report is attached from which the above said fact is quite clear but the OPs in a gross negligent manner ignored the said factum of presence of Lymphadenopathy in the report and advised the complainant and his wife that she has to undergo surgery for the removal of gallbladder. And since the complainant and his wife were layman and had no knowledge of the medical terms mentioned above as such they believed the version of the OPs as true. As per advice of OP No.3, the complainant and his wife agreed for the operation of gallbladder and during the period of wait of this surgery, she continued her follow up with OP No.3 and fully complied with his advice. The OPD slips dated 02.04.2014, 09.04.2014, 24.04.2014, 05.05.2014 and 20.05.2014 are placed on the file as Annexure C-5 to Ex.C-9 and all the said OPD slips reflect that she has been given only Pain Killers by the OP No.3. That from the initial diagnosis of her disease w.e.f 23.03.2014 to till her surgery i.e. till 27.05.2014, she underwent as many as 3 Ultrasounds at different diagnostic centers at Jalandhar. They are tabulated below.

5. It may also be mentioned here that during the above scans the concerned radiologist i.e. Dr. Mukesh Gupta, M.D. (Radiology) of Shree Diagnostic at Shaheed Udham Singh Nagar, Jalandhar and Dr. Paramjit Singh Badhan of Raj 3D scan situated at Ramneek Chowk, Kapurthala etc stressed that the patient had something serious problem and advised the complainant that she needs further evaluation. But, when the complainant discussed this suspicion with the OP No.3, then he assured that they should not worry about the same and further told that usually the scan centers make the patients afraid with suspicion but infact they are not so qualified and experts to give their opinions. He suggested that the complainant should not give much importance to them and also should not approach these scan centers again and again and further assured the complainant that they will make his wife absolutely normal after conducting operation of removal of gallbladder. The complainant and his wife believed the version of the OPs as true as she was already under heart care treatment with the OPs for the last about 2-3 years and they were having full faith upon the OPs and it is only on the assurances of these OPs that there is nothing to worry about the reports, the complainant and his wife had agreed for the operation of removal of gallbladder. That as such the patient Smt. Meena Kumari remained admitted in Tagore Hospital & Heart Care Centre Pvt. Ltd. from 26.05.2014 to 28.05.2014 for her operation and as such the OP No.3, conducted the laparoscopic cholecystectomy (Laparoscopic operation of removal of gallbladder) on her 27.05.2014. The OPs after conducting the operation of complainant's wife also told that the operation is successful and now they need not to worry about the same and called the complainant's wife for follow up after 7-8 days.

6. That it has already been highlighted in the preceding paragraphs that the significant finding of abdominal lymphadenopathy was totally ignored by the OP No.3 inspite of having knowledge of the same from the very beginning and the patient has been operated without any adequate investigations to rule out the possibility of cancer of the gallbladder which is one of the dangerous form of cancer. It is further submitted that the OP No.3 erred even during surgery also. Whereas the standard medical protocol is that prior to conducting gallbladder operation, the operating surgeon should first take BIOPSY from any suspicious and enlarged lymph node of the patient and subject it for tests to rule out the possibility of cancer to the patient but the OP No.3 did not bother to do so even during her surgery. So, not only the surgery of patient was done without proper investigations and evaluation, but also the surgery which was done by the OP No.3 was itself wrong and not as per standard medical protocol and is another illustration of the medical negligence of the OPs.

7. That another negligence committed by the OPs was that even after surgery the complainant was not handed over with any tissue (Gallbladder) or Lymph Nodes of the patient which were removed by the OPs during her surgery and has been destroyed without conducting any test on it. Whereas there were clear symptoms of Lymphadenopathy which ultimately deteriorated her condition. Thus it is an extreme case of medical negligence on the part of the OPs because as per standard protocol of practice that each and every tissue taken out from the body of the patient during surgery has to undergo for test by a Pathologist called (Histopathological examination). The fact that a wrong surgery was done on an under evaluated patient became evident within a week after surgery itself when the patient did not recover from her pains as expected. Her pain persisted and when the complainant and his wife complained about the same to the OPs on 05.06.2014 then the OPs again gave her some pain killers for further two weeks without any further evaluation. Rather the same drill was repeated by the OPs on her OPD visit on 04.07.2014. Inspite of taking regular medicines for about four weeks there was no improvement in the condition of complainant's wife and in the meanwhile when she visited to her regular cardiac consultant Dr. Ashwani Suri of OPs Hospital for her cardiac problem on 20.07.2014 then she also discussed her problem of post operational pains, with him and then Dr. Ashwani Suri advised the complainant's wife to undergo for ultrasound of her whole abdomen to verify her persisting problem of abdomen pain after operation. The OPD slip dated 20.07.2014 of Dr. Ashwani Suri is attached. Hence the complainant got a fresh ultrasound of his wife on 23.07.2014 from M/s Raj 3D Scan Center and the said ultrasound report was also showing the problem of presence of Lymphadenopathy in her upper abdomen. The said report was also shown to the OP No.3, on 25.07.2014 in OPD but the OP No.3 again ignored the symptoms of Lymphadenopathy (indicative of Gallbladder cancer), in the report, though the same has been duly reflected in Ultrasound report and told the complainant not to put worry about the same and to continue with her medicines as advised but, the complainant was not satisfied with the attitude and behaviour of OPs and as such they were compelled/forced to consult some other doctor, hence, the complainant got his wife checked from PIMS Hospital Jalandhar on 30.07.2014. The copy of ultrasound report dated 23.07.2014, OPD dated 25.07.2014 and 30.07.2014 are attached. The doctor of PIMS Hospital after going through the previous record of his wife also advised the complainant to go for CT Scan of the patient. The complainant also shown the advised report of PIMS hospital to the OPs and requested them to thoroughly check up his wife and it is only then the OPs conducted the CT Scan of wife of complainant on 30.07.2014. The copy of CT Scan report is attached. Even at that time the doctor did not disclose anything to the complainant about the disease of the wife of complainant and kept her under their treatment without diagnosing her real disease. The complainant was also completely fed up from the unwanted medication of his wife as she was not getting improvement in her health inspite of their treatment as the complainant and his wife many a time requested the OPs to disclose the real problem with her but the OPs failed to give any satisfactory answers and ultimately when the OPs found that the case of wife of complainant has been gone out of their control due to their own blunders, then, the OPs referred the patient to Patel Hospital, Jalandhar i.e. another empanelled hospital of FCI on 04.08.2014 as such the complainant and his wife approached to Patel Hospital, Jalandhar on 06.08.2014 and doctors of the said hospital advised the complainant to get conducted the PET scan which was got conducted by him on 06.08.2014. Thereafter, the complainant also approached to Kahlon Hospital situated at 1, New Colony, Near Geeta mandir, Model Town, Jalandhar on 08.08.2014 and shown all the ultrasound, CT scan and PET Scan report and treatment record of OPs hospital of his wife who after observing the reports and the treatment record of Tagore Hospital disclosed to the complainant that as per reports the wife of complainant, she is suffering from CA Gallbladder cancer and asked the complainant to give the BIOPSY report but the complainant told that the doctors of OPs have never advised to the complainant or his wife for any Biopsy nor they ever conducted any biopsy prior to operation, during operation or even after operation then the concerned doctor of Kahlon Hospital told the complainant that the OPs had made a blunder by operating his wife for gallbladder without getting conducting Biopsy on her person as it is specifically apparent from the ultrasound reports that there is Lymphadenopathy seen in the reports and as such the OPs have put the life of his wife in danger as it is the general practice to conduct the Biopsy of the patient, where the symptoms of Lymphadenopathy are seen in ultrasound. The doctors of Kahlon Hospital were also surprised to hear about the conduct of OPs and shocked as to how the doctors of OPs could behave in such an negligent manner and how could they conduct the operation of gallbladder of wife of the complainant without CT Scan, PET Scan & Biopsy before operation. The doctors were also surprised that how a doctor can ignore the ultrasound reports which were showing the Lymphadenopathy and conduct operation without Biopsy especially in state like Punjab which has the second highest incidence of this type of cancer in the whole World. However, it was advised by the doctor of Kahlon Hospital to the complainant and his wife to undergo for chemotherapy but at the same time the Doctor of Kahlon Hospital refused to provide any chemotherapy as her cancer has reached to the 4^th stage. It was utter shock and surprise for the complainant and his wife that she was suffering from Cancer but why this fact has never been disclosed to them by the OPs and conducted the operation in such a gross negligence manner by ignoring the ultrasound reports intentionally and willfully.

8. That though the complainant and his wife were completely under shock but, in order to make himself double sure the complainant also approached to Fortis Hospital at Mohali on 11.08.2014 and shown the entire record of treatment of his wife to them who after going through the entire record also asked the complainant for Biopsy report and disclosed the complainant that his wife is suffering from cancer. The complainant disclosed them that no Biopsy was ever conducted by the OPs before operating for gallbladder of his wife nor they were disclosed about the disease of cancer by the OPs, on this the concerned doctor for Fortis Hospital advised the complainant to undergo for chemotherapy and to review after Biopsy report. The doctors also disclosed to the complainant that due to unwanted operation of wife of complainant, done by the OPs the cancer has been spread and increased in stages and now it has reached up to the 4^th stage, which is known as N1 stage in medical terms and as such there are very slight chances of survival of complainant's wife. This fact has also become clear from the report of FNAC test dated 12.08.2014, which was got conducted by the complainant from Paramjit Laboratory. The visits of the patient to various hospitals after her surgery are tabulated below for ready reference:

9. That the complainant got aware of the extreme negligence in the medical practice of the OPs in the treatment of his wife, after his visits to the hospital mentioned above. The only reason for such gross negligence could be inadequate knowledge and to earn money from surgery as soon as possible. The complainant again approached the OPs on 13.08.2014 and contacted OP No.2 and disclosed about the opinions of Kahlon Hospital and Fortis Hospital to the OPs and asked as to why they have not conducted the Biopsy on the person of his wife and why they have not disclosed the factum of Gallbladder cancer to his wife but, the OPs failed to give any satisfactory reply and also failed to explain any reason for ignoring the ultrasound reports in which the observation of lymphadenopathy was quite apparent since the first ultrasound dated 24.03.2014. In fact, the OPs have impliedly admits their guilt and blunders and in order to escape from their liabilities, the OPs again referred the complainant to Rajiv Gandhi Hospital, New Delhi for further investigations. The complainant was completely fed up from the negligence committed by the OPs and was under shock of suspicion of loss of his wife due to negligence and fault of the OPs.

10. That feeling aggrieved from the negligent, act and conduct of the OPs the complainant was left with no option except to undergo for the treatment of cancer of his wife from some other hospital as such the complainant firstly approached to another empanelled hospital of FCI i.e. Patel Hospital, Jalandhar for the treatment of his wife for cancer by way of chemotherapy, where she remained admitted w.e.f. 12.09.2014 to 14.09.2014 for her first chemotherapy and then for one day on 20.09.2014 but, thereafter the complainant's wife was shifted to PIMS Hospital, Jalandhar, where she remained under treatment from 22.09.2014 till 24.06.2015 and there she underwent for 12 cycles of chemotherapy and ultimately after completion of all the cycles of chemotherapy, she was discharged from PIMS Hospital on 24.06.2015 with the advice of supportive care but after two days of her discharge, the wife of complainant succumbed to her disease and died on 26.06.2015 at GTB Nagar, Charitable Hospital, Jalandhar with all her sufferings and throughout pains at the hands of OPs. Due to the gross medical negligence and deficiency in service, the wife of the complainant had died at the age of 54 years only though the general expectancy of life is 70 years and as such the complainants have been deprived from her natural love and affection especially the complainant No.2 who has also been deprived from natural love, care and protection of motherhood beside loss of family atmosphere. The loss of wife of the complainant can never be compensated in terms of money, but since the OPs deserves to be penalized for their negligent and deficient, careless acts and conducts and as such, the complainant claims a compensation to the tune of Rs.20 Lacs only i.e. up to the maximum pecuniary limits of this Forum and accordingly the instant complaint filed.

11. Notice of the complaint was given to the opposite parties and accordingly the OP No.1 to 3 appeared through their counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is an abuse of the process of law and moreover, the complainant has come to put before the Forum the record which he tampered, falsified and made to self serve his malafides i.e. tampered the foremost radiologist report dated 24.03.2014 which actually indicated that “No fluid/adbominal lymphadenopathy seen”; the initial word 'No' has been kept away from the Photostat machine and the print of the rest has been brought before this Forum for read “Fluid/Abdominal lymphadenopathy seen” and after doing such trick, the complainant developed and spread his story in many paragraphs, repeating the same. It is further submitted that the wife of the complainant was discharged safe and sound after surgery from the respondent hospital on 28.05.2014 and thereafter she was under the care and treatment of various other hospitals including Patel Hospital, Jalandhar and PIMS Hospital, Jalandhar and before she expired on 26.06.2015 in GTB Nagar, Charitable Hospital, Jalandhar- all these, among others, are the necessary parties. In addition without there being the Kahlon Hospital, Jalandhar, before the Court, what has been observed by the doctors there and what was the stage of cancer and why chemotherapy could not be performed or obtained, nothing can be conclusively said in their absence from the array of parties. It is further submitted that the complainant has made verbose and lengthy by repeating in countless numbers the same allegations about the absence of biopsy although the complainant has been explained personally on 09.11.2015, and repeatedly making allegations on the clinical reports Annexure C-3, Annexure C-10 and Annexure C-11 which do not show any case of cancer of gallbladder, thus making the complaint very long and prolix and freely putting in the mouth of various doctors of different hospitals actually what he himself imagined and conceptualized, makes the complaint vexatious in law, therefore liable to be dismissed with heavy costs. It is further averred that there is no deficiency whatsoever in rendering the service on part of the OP No.1 to 3. The wife of the complainant was safe and sound after the surgery on 26.05.2014, she died after more than a year, after the surgery on 26.06.2015 due to the callous neglect and malafide working of the mind of the complainant, as such the complaint is liable to be dismissed with costs. On merits, it is admitted that the wife of the complainant remained regular patient of the Cardiac problem and further admitted that she was come present in the month of March 2014, with the problem of abdominal pain and she remained admitted in the hospital from 23.03.2014 to 25.03.2014 and thereafter follow up was advised and ultimately an operation was conducted and gallbladder was removed and she was fine and fit and discharged from the Hospital and as such there is no negligence on the part of the OP No.1 and 2. Before conducting impression blood investigation was conducted and everything was found correct. It is further submitted that the allegation that the complainant was not told about Lymphadenopathy is an allegation coming out of the clever and skillful deception made by the complainant by omitting the word 'No', which prefixed the word Lymphadenopathy in the report. It is a tampered version of the ultrasound report attached with the complaint Annexure C-3. It is further submitted that the lymphadenopathy, the lymph node enlargement occurs in response to variety of external causes. Lymph nodes appeared after attack of Acute Cholecystitis which were reported in the Annexure C-10 for the first time on 28.04.2014 and corroborated on 15.05.2014 by Annexure C-11. Acute Cholecystitis occurs when the gallbladder becomes inflamed in the presence of infection. In the presence of infection in the gallbladder, the lymph node enlargement will be attributed to chronic infection in the gallbladder. There was not a single report that would have missed carcinoma of the gallbladder if there was cancer in the gallbladder of the wife of the complainant, it was only Acute Cholecystitis and Lymphadenopathy and was reported in the radiologists reports Annexure C-10 and Annexure C-11. Ultrasound scan abdomen is the standard, readily available, non invasive imaging modality of choice for diagnosis of gall bladder carcinoma no suspicion of tumor/cancer in the gallbladder or lymph node was there by clinical examination either. In this situation, when there was no tumor (cancer) indicted from any side, there arose no question of ignoring the presence of tumor (cancer) when it never existed, indicated or suspected in any way or under the reports Annexure C-3, Annexure C-10 or Annexure C-11. The case was also discussed with radiologist Dr. Rajesh Verma MD Radiology for Ultrasound guided needle biopsy, but he advised against the procedure. No recommendation for liver hilum nodes percutaneous biopsy has, moreover, been made anywhere in medical literature. It is wrong that every case of Lymphadenopathy is to be subjected to test of Fine Needle Aspiration Cytology. It is wrong that OPs ignored the presence of Lymphadenopathy in the report of 24.03.2014. There is clear cut falsification of account. It is wrong that the OPs wrongly advised the complainant and his wife that she has to undergo surgery for removal of gallbladder. For the patient diagnosed with acute cholecystitis, the definitive treatment only was the surgical removal of the gallbladder and further submitted that the operation of the removal of the gallbladder was the need of the hour, which was conducted with extra care to be given to a patient having passed through incidence of coronary angiography and was suffering from Ischemic Heart Disease. It is further submitted that the whole position as to why the Biopsy was not done was explained to the complainant, as the patient was suffering from Ischemic Heart Disease, so attempt was to minimize time for anaesthesia. There was a brief period of hypertension towards the later part of surgery, which was corrected by the anesthetist. But what is being suggested by the complainant in this para that Biopsy was to be conducted and not conducted. In this case, pre-operative scans (done by three different radiologist) never indicated towards malignancy in the gall bladder and on gross examination, no evidence of cancer is GB was seen, moreover during surgery the gallbladder was easily removed. As aforesaid, no attempt was made to extend dissection to look for nodes that could be there adherent to liver or blood vessels for reasons elaborated above. The claim of the complainant that there were clear symptoms of Lymphadenopathy which ultimately deteriorated her condition is wrong. Lymph nodes appeared after attack of Acute Cholecystitis which were reported later in the Annexure C-10 and Annexure C-11 and not in first ultrasound report 24.03.2014 Annexure C-3 and lastly prayed that there is no negligence on the part of the OP No.1 to 3 rather they are skilled doctor having experience and they did and gave the treatment according to their knowledge and skill. Therefore, the allegations as made in the complaint are totally wrong and thus the complaint of the complainant may be dismissed.

12. OP No.4 is a performa OP. Therefore, he was not summoned and as well as no reply of the OP No.4 is on the file.

13. OP No.5 filed a written reply and contested the complaint by taking preliminary objections that the above noted complaint is not maintainable under the law against the OP No.5. The complainant is not a consumer qua answering respondent and as such the complaint is liable to be dismissed. It is further averred that there is no privity of contract between the complainant Ramesh Kumar and the OP No.5. The OP No.5/Oriental Insurance Co. Ltd is thus not a necessary party in the present complaint and as such the complaint is liable to be dismissed on this short score alone. Without admitting any liability, it is submitted that the OP No.5 had insured the OP No.1 to 3 and issued an insurance policy respectively. It is further averred that no liability qua the answering respondent can be fixed in the present complaint proceedings. The matter interse the insured and the insurer is to be decided by the insurance company by determining whether any claim is covered under the respective policy/policies obtained by the concerned doctor or Hospital and thereafter the liability of the insurance company, if any, is to be determined by the competent authority of the company, as per the terms and conditions/exclusion clause of the Policy. As such, no relief can be directly granted in favour of the complainant in the present complaint. On merits, most of the para has been denied for want of knowledge and lastly submitted that the present complaint against the replying OP is not maintainable. Therefore, the same may be dismissed.

14. In order to prove the claim of the complainant, complainant himself tendered into evidence his duly sworn affidavit Ex.CA alongwith some documents Ex. C1 to Ex.C45 and closed the evidence.

15. Similarly, counsel for the OP No.1 to 3 tendered into evidence affidavit Ex.OA alongwith document Ex.O1 to Ex.O32 and closed the evidence and counsel for the OP No.5 tendered into evidence affidavit Ex.OP5/1 and closed the evidence.

16. We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and also gone through the case file very minutely.

17. The learned counsel for the complainant urged that the wife of the complainant namely Meena Kumari was brought to Tagore Hospital, Jalandhar in the month of March, 2014 for severe abdominal pain and after her ultrasound dated 24.03.2014 Ex.C3, she was reported to have been suffering from Cholecystitis with Cholelithiasis with Sludge and Fatty changes of Liver and Abdominal Lymphadenopathy which in simple terms is known as stone in her gallbladder along with acute infection and in regard to that the other reports are also available on the file Ex.C4 dated 25.03.2014, Ex.C10 dated 28.04.2014 and Ex.C11 dated 15.05.2014. The contents of the aforesaid ultrasound reports itself clearly reflects that the patient Meena Kumari was suffering from acute Cholecystitis and Cholelithiasis alongwith Lymphadenopathy in the month of March, 2014 i.e. even two months prior to conducting of operation on the person of Smt. Meena Kumari. But this factum of presence of Lymphadenopathy in the report, has been illegally kept concealed by the OP No.1 to 3 from the patient as well as from the complainant being her husband and similarly these fact has also been willfully and illegally ignored by OP No.1 to 3 though being having full knowledge of the fact that the wife of complainant is suffering from acute infection which is the clear symptom of presence of cancer in her Lymph nodes. But inspite of that OP No.1 to 3 in violation of the medical protocol conducted the operation/general surgery of the wife of the complainant and removed her gallbladder on 27.05.2014 by laparoscopic operation. It is further submitted that the OPs were so negligent that they did not even bothered to conduct any fresh diagnosis, tests, ultrasound, Biopsy or FNAC test before conducting the operation/surgery on the person of Smt. Meena. Rather the OPs had willfully, illegally and malafidely ignored the aforesaid ultrasound reports Ex.C3, Ex.C10 and Ex.C11 without any cogent reasons, which is totally against the protocol of surgery. In realty, the OP No.1 is the general hospital and they are not equipped with treatment of cancer patients nor the doctors have any specific qualification for treatment of cancer patient and that is why they concealed the factum of Lymphadenopathy from the patient and operated her illegally and malafidely knowing fully well that it may cause spreading of cancer in the other parts of the body of the patient and it may also result in her unnatural death, if the Lymph nodes are not removed from the person of deceased Meena.

18. The negligence committed by the OPs is also proved from the factum that the OPs have also failed to give any reason as to why the OPs have not got conducted the histopathology of the gallbladder removed from the person of deceased Meena, though it is the basic protocol of general surgery that whenever the part of body is removed, the same has to be sent to lab for its histopathology test and as such the negligence of the OP No.1 to 3 is established.

19. It is further argued that Lymph nodes of the patient were so tiny that it was not possible for the doctors to take Biopsy from the said Lymph nodes at the time of operating the patient, whereas on the other hand, the OPs has always been claiming that there was no symptom of cancer as such there is no need of doing any biopsy. It clearly shows that the OPs are taking both hot and cold breath at the same time, just to escape from the liability. Thus, the OPs have committed serious negligence at pre-operation stage and also at post-operation stage due to which persisting problem of pain in the abdomen of wife of complainant continues and the patient did not recover from its disease inspite of taking medicines, but all the time the patient was being continuously drilled by the OPs to eat some kind of pain killer for a continuous period of about more than two months and during this period neither the OPs disclosed to the patient or the complainant about the existence of any cancer nor she was given any treatment in this regard inspite of the fact that even after three months of the operation, it has again came in the ultrasound, conducted by OPs on 23.07.2014, copy of the same is available on the file Ex.C16, that the patient is still suffering from Lymphadenopathy in her upper abdomen. But again this report has been ignored by the OPs and no treatment of cancer was given to her rather the patient was referred to Patel Hospital, Jalandhar. Even the complainant got the CT Scan of his wife deceased Meena on 30.07.2014 and after going through the said CT Scan report, the OPs disclosed that Meena is suffering from Cancer and again she was referred to Rajiv Gandhi Hospital, Delhi and thereafter the complainant got treatment from Patel Hospital as well as Fortis Hospital and ultimately the wife of the complainant was died due to negligent act and conduct of OP No.1 to 3 and further requested for compensation of Rs.20 lakhs.

20. On the other hand, the learned counsel for the OP No.1 to 3 submitted that the instant complaint is based on false and frivolous documents because the ultrasound report Ex.C3 dated 24.03.2014 is tampered by the complainant just to get financial benefit, by way of filing the present complaint. Infact in the report Ex.C-3 dated 24.03.2014, the actually indicated the word “No Fluid/abdominal Lymphadenopathy seen”, the initial word No has been kept away from the Photostat machine and the print of the rest has been brought before this Forum which is as under “fluid/abdominal lymphadenopathy seen” and after doing such trick, the instant complaint is filed which is not maintainable and in order to prove the real fact, the OP has brought on the file the copy of the ultrasound report Ex.O1, wherein the word No free fluid is apparently accessible.

21. The next point raised by learned counsel for the OP No.1 to 3 is that the wife of the complainant was discharged safe and sound after surgery from the respondent hospital on 28.05.2014 and thereafter she remained under care and treatment of various other hospitals included Patel Hospital, Jalandhar, PIMS Hospital, Jalandhar, Fortis Hospital and Kahlon Hospital etc and thereafter, wife of the complainant was died after more than a year, after the surgery conducted by the OP No.1 to 3 and reason for the death is not corelated with in any manner in the operation of gallbladder, conducted by the OP No.1 to 3.

22. The next point raised by the learned counsel for the OP No.1 and 2 is that there is no negligence on the part of the OP because the OP No.1 is a reputed hospital and OP No.2 is a doctor, working in that hospital as well as OP No.3 is also a doctor working in that hospital and both the doctors having a skill and experience and also having appropriate degree and qualification for conducting for treating such like patients and question does not arise to commit any negligence and in support of this submission the learned counsel for the OPs referred a judgment of the Hon'ble Supreme Court decided in Civil Appeal No.1385 of 2001 “Kusum Sharma & Others Vs. Batra Hospital & Medical Research Centre & Others”.

23. And further in support of above submission, the learned counsel for the OP No.1 to 3 referred the affidavit Ex.OA of Dr. Ravi Seth i.e. OP No.3, whereby he reiterated the entire facts as elaborated in the written reply and similarly referred the affidavit Ex.O23 of Dr. Vijay Mahajan i.e. OP No.2, whereby he also reasserted that there is no negligence on the part of the OP No.1 to 3 and then he referred an affidavit Ex.O29 of Dr. I.V.S. Sirohi, DA, M.D. Anaesthesiologist, Tagore Hospital, Jalandhar who also supported the version of the OP No.2 and 3. Further he also referred the affidavit Ex.O30 of Dr. Rajesh Verma, M.D. (Radiology), Tagore Hospital, Jalandhar, who also supported the version of the OP No.2 and 3 and then he referred an affidavit Ex.O31 of Dr. Rupinder Bhagava, who deposed that he is working in the Kahlon Hospital and holder of Fellowship of cancer surgery and further deposed that husband of Mrs. Meena Kumari had come to him and was advised to bring the patient, who never brought the patient to the hospital and then he referred the affidavit Ex.O32 of Doctor V.K. Vasudeva, M.S. (Surgery), Lajwanti Hospital, Jalandhar, who categorically deposed that he deposed on the basis of her authorities on the point, vouchsafes that for the patient diagnosed with acute cholecystitis and cholelithiasis, the definitive treatment only is the surgical removal of the gallbladder. Apart from that he has also referred documents Ex.O2 to Ex.O21 relating to treatment operation of Lymph nodes and lastly prayed that the complaint of the complainant is without merit, it is filed just to harass the OP No.1 to 3 and therefore the same may be dismissed.

24. The learned counsel for the OP No.5 submitted that there is no privity of contract between the complainant Ramesh Kumar and OP No.5. Therefore, the OP No.5 is not a necessary party in the present complaint and further submitted that no liability qua the answering respondent can be fixed in the present complaint proceedings because the matter interse the insured and the insurer is to be decided by the insurance company by determining whether any claim is covered under the respective policy/policies obtained by the concerned doctor or hospital and thereafter the liability of the insurance company, if any, is to be determined by the competent authority and further submitted that the complaint of the complainant may be dismissed qua OP No.5.

25. After considering the respective argument of each party, we find that the factum in regard to bringing of deceased Meena in the hospital of OP No.1 in the month of March, 2014 due to severe abdominal pain and where ultrasound was conducted and it was reported that there is a stone in the gallbladder and accordingly, the operation of the deceased Meena was conducted on 27.05.2014 and she remained admitted in the hospital from 25.05.2014 to 28.05.2014. The above facts are not denied by the OP No.1 to 3. The simple plea taken by the OPs is that the complainant had tampered the ultrasound report dated 24.03.2014 Ex.C3 by deleting the word Not whereby the meaning of the report in regard to presence of Lymphadenopathy is present or not, change but if we ignore the said report Ex.C3 dated 24.03.2014, even then there are two other reports Ex.C10 and Ex.C11 dated 28.04.2014 and 15.05.2014 respectively which were also in existence and the time of conducting operation of gallbladder i.e. 27.05.2014 and if we go through the aforesaid two reports Ex.C10 and Ex.C11, wherein the impression have been given by the doctor acute cholecystitis and cholelithiasis and lymphadenopathy and Opular masses has been reported. So, it means that the presence of lymphadenopathy itself established that there is some problem in the gallbladder of the deceased Mrs. Meena. So, it means the operating surgeon has committed serious negligence by ignoring two ultrasound reports Ex.C10 and Ex.C11 and he was well aware about these reports because the OP No.1 to 3 has itself brought on the file both the reports Ex.OP19 and OP20 and if there was any problem then it is the duty of the OP No.2 and 3 to get a clarification by way of getting a test i.e. Radiography test or CT Scan, FNAC. The aforesaid tests are required because the presence of lymphadenopathy itself shows that there is a Lymp nodes and there is acute infection and there might be tumor or cancer and further it can be got clarified by way of needle Biopsy but admittedly, the OP has not got any test prior to operating the deceased Meena and if the aforesaid test was got conducted then the said Meena might be survived for more years because due to gallbladder operation, the cancer which was deducted later on when it reached in 4^th stage, spread in the body and same could not be got recovered even by getting a chemotherapy from Patel Hospital as well as from PIMS Hospital and ultimately due to negligent act of the OP No.1 to 3, the said Meena lost her valuable life.

26. Apart from above even when the complainant got treatment of her wife from Patel Hospital, CT Scan was suggested and accordingly he got CT Scan and copy of the same was available on the file Ex.C19 and after going through that report which was got conducted in the month of August, the OP No.3 again referred the deceased Meena to Rajiv Gandhi Hospital, instead of giving any treatment though Meena was died after more than one year, after the date of operation but the disease of cancer was spread in her body due to the fault of the OP No.1 to 3 and under these circumstances the ruling referred by learned counsel for the OP that the OP doctor i.e. OP No.2 and 3 has reasonable degree of skill and knowledge and accordingly they performed operation of deceased Meena but in this case, the negligence is not in regard to conducting of operation rather the negligence is only to ignore the ultrasound reports Ex.C10 and Ex.C11 which were got by the complainant prior to conducting of the operation and even there is an other ultrasound report conducted by OP No.1 to 3 dated 23.07.2014 Ex.C16. The OP No.1 to 3 never disclosed in regard to spreading the cancer in the body of the deceased Meena. It is medical ethics for the doctor to disclose each and every symptom to be happened prior to operation or after operation, to the patient or his or her attendant but in this case, the OP No.2 and 3 always concealed the factum in regard to the disease of cancer to the deceased Meena and as such the aforesaid judgment (Supra) Civil Appeal No.1385 of 2001 is not applicable in this case rather a ruling of Andhra Pardesh State Commission is apparently applicable in the facts of the present case, the said ruling is cited in 2002(1) CLT 436 Kishan Rao and Others Vs. Sudha Nursing Home and Others and wherein categorically observed that operation on both occasions done without getting the biopsy done but subsequently test showed that the tumor is of malignant nature and accordingly it is considered to be medical negligence and further it is held in the ruling of State Commission Uttranchal, wherein held that Consumer has got right to be treated by the doctor but he has also a right to be informed of the possible effect and after effects of the perse speaks of the negligence of the doctor and this ruling is cited in 2005(2) CLT 105 “Mumtaj Ansari Vs. Zubeda” and further we like to refer an other judgment of Hon'ble Supreme Court cited in 2010(5) SLT 349 “VK Kishan Rao Vs. Nikhil Super Specialty Hospital and another”, wherein his Lordship categorically held that the claim of the petitioners can not be rejected only on the ground that expert witness was not examined to prove negligence of Doctor. It is not required to have expert evidence in all cases of Medical negligence. In the light of above judgments, if we see the case of the complainant then we can say without any hesitation that in the present case the evidence of the expert witness is not required because if there is any allegation in regard to conducting of the operation then expert witness is required but in this case, the allegations are only that the OP No.1 to 3 have committed a negligence by ignoring the previous ultrasound reports and due to that reason, complainant's wife Meena lost her life. So, if we see the case of the complainant, in the light of above judgments then we can say without any hesitation that the OP No.1 to 3 has committed a gross negligence in their profession before conducting operation as well as after conducting the operation and as such they are liable to indemnify the complainant.

27. So for the concern of OP No.5 is related, we are fully agreed with the submission of the learned counsel for the OP No.5 that there is no liability of the OP No.5 in this complaint to indemnify the complainant because there is no privity of contract between the complainant Ramesh Kumar and insurance company. So, accordingly we hold that the OP No.1 to 3, if consider an appropriate then they can directly claim the insurance amount from OP No.5 by filing a separate complaint but in this case, the OP No.5 cannot be compelled to pay any amount on behalf of OP No.1 to 3 because the OP No.5 has its independent right to contest his case if any direct relief is claimed from him but obviously in this case no relief has been directly claimed from OP No.5. Therefore, the complaint of the complainant against OP No.5 is dismissed.

28. In the light of above detailed discussion, the complaint of the complainant against OP No.1 to 3 is partly accepted and accordingly we hold that the loss suffered to the complainant cannot be fulfilled by simply granting him some compensation amount because the complainant has suffered such a loss which cannot be fulfilled but it will be justifiable to penalize to OP No.1 to 3 for their negligent act, deficient and careless act and conducts and accordingly with these views, the OP No.1 to 3 are directed to pay a compensation of Rs.10,00,000/- to the complainant within the period of 30 days from the date of receipt of the copy of order, failing which the said amount will be paid with interest @ 9% per annum from the date of filing complaint till realization. Complaint could not be decided within stipulated time frame due to rush of work.

29. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

21.06.2017 Member President