DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.264/2012
Arjun Swaraj
S/o Sh. Akshaybar Nath
R/o RZ-2686 A/29,
2nd Floor, Tughlakabad Ext.
New Delhi - 110019
….Complainant
Versus
Dr. Meenakshi Singh,
Moolchand Hospital,
Lajpat Nagar-III,
New Delhi
The New India Assurance Co. Ltd.
4th Floor, Bajaj House,
97, Nehru Place,
New Delhi - 110019
….Opposite Party
Date of Institution : 22.02.2012
Date of Order : 19.01.2022
Coram:
Ms. Monika A Srivastava, President
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
The complainant, in this case is the husband of a lady named Ms. Jyoti (hereinafter referred to as ‘patient’) and he has filed the present complaint alleging medical negligence in a surgery carried out on the patient and in that regard has prayed for a sum of Rs. 20,00,000/- for poor medical services provided to her as her right to life and personal liberty has been permanently compromised/breached. The complaint has been filed against Dr. Meenakshi Singh i.e OP No.1 and Moolchand Khairati Ram hospital i.e OP No.2. At the behest of OP No. 2, an application for impleadment of National Insurance Company as a necessary party was moved and since the complainant had no objection National Insurance Company was impleaded as OP No. 3 vide order dated 18.12.2014. ( however, in the said order it is referred to as OP No.4)
It is the case of the complainant that they met OP No. 1 in the general OPD of OP No. 2 where in the ultrasound and other reports were examined and the patient was also examined physically. Thereafter, the patient was advised immediate laprascopic surgery for the removal of huge cyst from her left ovary. It is also the case of the complainant that he had only consented for surgical removal of cyst on the left ovary and tubectomy of the patient, however during the surgery her urine pipe was cut and it was informed that her urine pipe was passing through the solid muscular tumours and that was it was necessary to be cut for the removal of the cyst tumour.
Further, it is the case of the complainant that the consultant urologist was not present at the time when the urine pipe was cut and in his absence another urologist was called for reconstructing the patient’s urine pipe. During this time the patient was left with open abdomen which resulted in severe blood loss causing anaemic situation for her. At this juncture OP No. 1 approached the complainant for his consent for reconstruction of the damaged ureter. He has further alleged that patient’s healthy and normal uterus was cut out without any intimation or consent and the cutting of ureter badly impacted her health and also increased the medical/clinical/consultant/lab/bed and other related charges. It is the case of the complainant that this surgery not only costed him his wife’s health but also strained relations with her and her family.
It has further been stated that he was not provided the discharge summary and all the relevant papers relating to the patient’s surgery except a paper on which a few medicines was written by the nurse on duty at the time of discharge. It is also stated that despite repeated requests for handing over the patient’s discharge papers and biopsy reports, those were never provided by the OP no. 2. It is also stated by the complainant that when he went to Batra hospital along with the patient and a CT scan was done on 05.05.2012 it was found that both the ovaries of the patient as well as the uterus was invisible. Based on the these facts, the complainant has prayed for compensation of Rs.20,00,000/- both against OP no. 1 and 2.
In reply to this OP No. 1 has taken the preliminary objection that neither the complainant nor the patient are the consumer of OP No. 1 rather they were consumer of OP No. 2. Another preliminary objection taken is that the complaint is bad for non-joinder of necessary party as the patient has not filed the present complaint and in fact it is the complainant who has filed the present complaint with no locus standi except that he has made payment to OP No. 2.
It is also stated that there has been no negligence on the part of OP No. 1 as the patient recuperated smoothly and no post surgery complication was ever reported or alleged by the complainant. It is also stated that the OP No. 1 took all measures which were necessary to complete the treatment of the patient which not only cured the patient properly but also avoided chances of her having cancer in future.
The decision of removing the uterus of the patient was taken as a life saving measure as it was not possible to complete the operation without removal of uterus with which the vascular tumour was adherent. Later, pathologically it was found that it had growth of atypical cell which is a pre cancer condition. It is also stated that the condition of uterus of the patient can still be verified by the pathological examination of the uterus slide of the patient. Since the tumour was parasitic and was attached with wall of the uterus in such a manner that it was not possible to complete the surgery without removal of the uterus therefore, the uterus was removed as life saving measure. In any pelvic surgery specially difficult ones there is a possibility of ureteric injury.
It has also been stated that consent form was signed by the patient and her mother in law which was taken for laparoscopy/laparotomy/ovarian cystectomy with B/L Tubal ligation and hysterectomy and for extended surgery SOS as under ‘during the course of operation procedure unforeseen conditions may be revealed which may necessitate surgical or other emergency procedures in addition to or different from those contemplated at the time of initial diagnosis’. It is also clarified that left ureter was not cut out but got damaged in course of surgery because of profuse bleeding and distorted anatomy and that damage of ureter in course of pelvic surgery cannot be attributed to the negligence of the surgeon but to the nature of surgery. It is also stated that the slides of the uterus of the patient has been preserved by the OP No. 2 after biopsy test and its condition can be verified by sending the same for analysis a certain growth of atypical cells.
It is stated that the present complaint is a misuse of the process of law.It is further stated that the complainant is aggrieved only because he had to spend more money than what was initially provided as preliminary estimate but at times the nature of ailment cannot be properly diagnosed and surgical complication goes on unexpected line. What is important is that the patient has was operated successfully without any post surgical complications.
On merits it is stated that the patient was first seen as a walk in patient at OP No. 2 and was diagnosed of left ovarian cyst 13.12 x 6.12 cm with differential diagnosis torsion left ovary. She had come to take a second opinion as she was complaining of pain in abdomen for past two months with acute recent pain. She was advised admission for removal of cyst along with tubal ligation after one unit of blood transfusion. Surgery suggested was laparoscopy/laparotomy (cystectomy+ B/L Tubal ligation). On 13.04.2012, the complainant came to the OP No. 1 and he showed USG| whole abdomen report dated 11.04.2012 which showed enlarged left ovary with multiseptated cyst/torsion. Uterus was normal in shape in size and position.
Further, she got NCCT whole abdomen done on 13.04.2012 which showed well defined large cystic mass with internal septation and solid components seen arising from the pelvis measuring 21x 20 x12.5 cm, minimal, very hectic fluid scene and minimal fluid seen in right paracolic gutter. Uterus appeared normal in shape size and position. On laparoscopy, a huge vascular uterine mass was seen adherent to gut bladder and left literal pelvic wall. This mass was seen arising from fundus of uterus going in the abdomen more towards left side. Left ovary and tube could not be seen separately. Decision for exploratory laparotomy was taken on the table. on laparotomy, it was a solid and very vascular cystic mass burrowing into retroperitoneal structures and left pelvic wall. Anatomy was totally distorted, possibility of fibroid with malignant change or ovarian malignancy stuck to uterus gut and bladder was thought. The case was discussed with the whole operating team and the decision of hysterectomy with removal of tumours was made on the table as a life saving procedure in view of the bleeding mass with a possible malignant change. The same was communicated to the complainant and his consent was taken.
There was no tissue plane and tumour was resected with greatest of difficulty as it was very vascular burrowing into all surrounding structures. Tumour removed was followed by sub total hysterectomy as urinary bladder was morbidly adherent on interior surface of vagina and cervix. Urologist was added to the team and he localised an injury to the ureter which was managed by cystoscopy, ureteroureterostomy and DJ stenting. Self retaining catheter was put an another drain left intraperitoneally. Homeostats was achieved with great difficulty and intra abdominal drain put in because tumour was very very vascular. The specimen resected was sent for histopathological examination and the patient was shifted to surgical ICU, her post operative period till 22.04.2012 was uneventful. She was discharged on 22.04.2012 with an advice to follow up in the OPD and to collect biopsy report. The biopsy report dated 22.04.2012 revealed retroperitoneal paracystic Leiomyoma with complex granular hyperplasia endometrium with mild atypia (Early cancer) with hemorrhagic cyst left ovary.
To substantiate her case OP No.1 has also filed an opinion from one Dr. Renu Mishra from Sitaram Bharti Institute of Science and Research and one from Dr. Jayshree Sundar of Max speciality hospital and yet another from Dr. Bithika Bhattacharya, of Max. Also, the OP No.1 has filed literature regarding the kind of surgery of the patient.
In their reply the OP no. 2 has mostly reiterated information which OP No.1 has provided in her reply. It has also been stated that there is no allegation of deficiency of service against OP no. 2. It is also stated that there is no relationship of employer and employee between OP no. 2 and OP no. 1. OP no. 1 is an independent consultant in her own right and only availed the services available at OP no. 2, therefore OP no. 2 cannot be held responsible for any act of negligence, if any, at all alleged against OP no. 1.
It has also been stated that the complainant has no locus standi as he is not a consumer within the provision of the Act and the patient to whom the entire treatment was given is hale and hearty as such the present complaint is nothing but an abuse of the process of the law. It is also stated the discharge paper and other reports were handed over to the patient/ her family members. Allegations made are against the medical jurisprudence. It is stated that to infer rashness or negligence on the part of a medical professional, a simple lack of care an error of judgement or an accident is not a proof of negligence on the part of a medical professional so long as the doctor follows a practice acceptable to the medical profession of that day he cannot be held liable for negligence merely because a better alternative course or method was also available or merely because the more skilled doctor would not have chosen to follow /resort to that practice of procedure which the other doctor followed. The test for determining medical negligence as laid down in Bolam vs Frien Hospital Management Committee case holds good in its applicability in India. The doctors are not guarantors, they cannot guarantee end results, the test for establishing negligence on the part of the doctor is to whether he or she has been proved to be guilty of such failure as no doctor of medical skill would be guilty of, if acting with reasonable care.
It also been stated that the complainant had also lodged a complaint with the Delhi Medical Council which passed an order dated 31.05.2013 wherein the council had opined, “the surgeons performed subtotal hysterectomy would removal of left side tumour as the tumour was very vascular an adherent to bladder and ureter. as there was doubt of left ureter injury due to ureter going through the tumour urologist was called at the time of initial surgery only who managed the ureteric injury by cystoscopy ureteroureterostomy and DJ stenting ….…. The surgeons managed the case well by performing the complex surgery sub total hysterectomy with removal of left sided tumour and by adding the urologist in the team who manage the ureteric injury. the case was managed by reasonable care.” The said report is annexed as R-2. The Delhi Medical Council did not find any prime facie case of medical negligence against OP No.1 and 2.
In Jacob Mathew vs. State of Punjab and Ors. (2005)6 SCC 1 by the Hon’ble Supreme Court wherein it was stated that “Negligence is a breach of duty caused by omission to do something and Commission or doing something which is prudent and reasonable man would not do. So long as the doctor followed the practice acceptable to the medical profession of that day he cannot be held liable for negligence.
(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582 holds good in its applicability in India.
As far as the contention of the OP no. 1 and 2 that the Complainant is not a consumer is concerned, this Commission is of the view that since the Complainant had paid for the services hired at OP No.2 and OP No.1 works as a consultant at OP No.2 and his wife was the beneficiary of these services therefore he can be a complainant. The contention of the OP No.2 that there is no relation between OP No.1 and 2 is not correct. Hospitals and doctors cannot ward off their liability by either saying that there is no employer/employee relationship between them or that OP No.1 merely gets some remuneration from OP No.2. The consumer is not concerned with the arrangement between the hospital and the doctor, for the consumer it is a composite deal. The doctor has also chosen to be seated at a particular hospital and admits his/her patients at that hospital with a belief that they would be taken care of therefore they cannot hide behind the plea that there is no relationship between the doctor and the hospital. A consumer normally chooses either the hospital or the doctor for the services that he hires. As stated earlier, it is a composite package, one cannot be separated from the other except in cases where the extent of medical negligence is to be fixed.
The Commission observes that in the present case, the report of the Medical Council has not been challenged and has attained finality. Keeping in mind the expert report of the Delhi Medical Council, the literature and opinions of various doctors filed on record and applying the tests laid down in Jacob Matthews’s case, this Commission is of the view that in the present facts, negligence cannot be attributed to OP no. 1 or OP No.2. Therefore the complaint is dismissed with no order as to costs.
File be consigned to the record room after giving copy of the order to the parties. Order be uploaded on the website.
