Chandigarh

DF-I

CC/717/2017

Smt. Usha Verma - Complainant(s)

Versus

The Superintendent, Government Multi Speciality Hospital - Opp.Party(s)

In Person

06 May 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

                               

Consumer Complaint No.	:	CC/717/2017
Date of Institution	:	13/10/2017
Date of Decision	:	06/05/2019

 

Smt. Usha Verma w/o Late Sh. Sanjay Verma alias Papu, r/o Village Premnagar, P.O. Faral, Tehsil Kumarsain, Distt. Shimla, H.P.

Represented through S.P.A, Sative Chauhan s/o Sh. Satpal Chauhan, Sative Niwas, Sangti, Sanjauli, Shimla, H.P.

… Complainant

V E R S U S

1.     The Superintendent, Government Multi Speciality Hospital, Sector 16, Chandigarh and Allied Dispensaries.

2.     Dr. Dabar, Surgeon, Government Multi Speciality Hospital, Sector 16, Chandigarh and Allied Dispensaries.

3.     Dr. Bal, Surgeon, Government Multi Speciality Hospital, Sector 16, Chandigarh and Allied Dispensaries.

4.     Dr. Sarabjeet Singh, Surgeon, Government Multi Speciality Hospital, Sector 16, Chandigarh and Allied Dispensaries.

… Opposite Parties

CORAM :	SHRI RATTAN SINGH THAKUR	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                    

                                               

ARGUED BY	:	Sh. Sative Chauhan, SPA of complainant
	:	Sh. Ashok Gautam, Govt. Pleader for OP-1
	:	OPs 2 to 4 in person

 

Per Rattan Singh Thakur, President

1.         The long and short of the allegations are, complainant, who is resident of District Shimla (HP), got herself registered as an outdoor patient with OP-1 on 16.10.2015 for removal of gall bladder.  Her case is, under the orders/recommendations of OP-3, she was admitted on 16.07.2015 for laparoscopic procedure for removal of gall bladder which was performed by OPs 2 & 3 on 17.10.2015 and she was discharged in suitable condition on 19.10.2015. The complainant again visited OP-1 for the removal of drain on 21.10.2015. The drain was removed negligently by OPs 2 & 3 alongwith hospital para medical staff and initial surgery was also done by them.  The complainant was referred for ultrasound on the same day and she was told by Dr. Dabar/OP-2 that everything is normal and she need not to worry.  Averred, complainant experienced pain and CT scan was got done on 26.10.2015 by Dr. Manasa Pandith P.C. which revealed  presence of a foreign object inside, a hyper dense tubular structure seen in GB fossa extending anterior to the stomach in the peritoneal cavity.  It had a diameter of ~4mm and a length of ~12 cm.  Thereafter OP-2 told complainant that she would be operated upon again due to negligence of the hospital and their employees and she was admitted on 28.10.2015 and the second surgery was performed by OPs 2 to 4 on 29.10.2015 and the foreign body was removed. It had clearly established medical negligence on the part of OPs 2 & 3 who had performed the previous first surgery and had removed the drain on 21.10.2015. The complainant was discharged on 31.10.2015 in near fatal condition after the second surgery. The complainant faced the consequences of the medical negligence. Her further case is, the drain used was too thick and banned and Dr. Dabar/OP-2 replied that it was a special case to the questioning doctor which was a clear lie to save himself.  Hence, there has been breach of duty of care on the part of OPs 1 to 3.  The complainant had availed the services of the OPs on payment details of which have been given by OP-1 in its written reply. It reflects total amount charged for various procedures was Rs.150/- for test under Histopathology; Rs.575/- for major operation with GA and daily charges general ward; Rs.150/- for ultrasound and Rs.600/-for major operation with GA and daily charges general ward. It was further claimed, complainant had spent more than Rs.30,000/- for the first and second surgeries and Rs.1,50,000/-on necessary items for the surgeries as well as attendants and more than Rs.50,000/- for travelling and lodging and other expenses in Chandigarh for herself and her family. Hence, the present consumer complaint praying for compensation of Rs.19.00 lakhs alongwith interest for deficiency in service inclusive of mental and physical harassment and other charges.
2.         OP-1 filed its written reply and, inter alia, raised preliminary objections of present consumer complaint being not maintainable complainant not being consumer. Per record, complainant had visited the Civil Dispensary, Sector 38, Chandigarh (allied dispensary of OP-1 Hospital) in the OPD and had complained of pain in the abdomen for which she was advised ultrasonography of whole abdomen. Pain killers were recommended.  It is further the case, on 8.8.2015, report of ultrasonography was shown which had diagnosed fatty liver, gall bladder stones, fibroid uterus and cervicitis. On 10.9.2015 complainant had again visited the said dispensary and was referred to OP-1 hospital for further surgical opinion.  The complainant was registered in the Surgery OPD of OP-1 hospital on 11.9.2015 and was examined by OP-3, who, after perusal of record, diagnosed the complainant was suffering from cholelithiasis i.e. presence of galls stone – stone in gall bladder whereas Common Bile Duct (CBD) was normal i.e. there were no stones in it.  OP-3 had prescribed medicines to control pain and thereafter on 16.10.2015 complainant was admitted and her consent was taken by OP-3. Further case is, on 17.10.2015, laparoscopic cholecystectomy was performed to remove gall bladder by OPs 2 & 3 which was successful and post-operative care was advised and in modern days surgery a drain pipe (plastic tube with container) is used to drain blood and body fluids in a container in order to avoid collection of blood and body fluid inside the body, which if remained inside the body can get infected leading to septic infections which could be life threatening to the patient. Further case is, on 21.10.2015 complainant’s drain was removed by para medical staff and it was observed, complete inserted portion of the drain pipe i.e. 21 cm had not come out and the portion which came out was only 9 cm thus 12 cm pipe remained inside. It was not due to negligence of the OPs that the patient’s drain was broken or fractured as it could break or develop fracture due to twist, jerks and heavy movements or due to inherent nature of the material of which the drain pipe was made of and drain could get caught in such adhesions which could lead to break/fracture. Further case is, complainant was advised second surgery for removal of the same after admission. CT scan MRI was also advised, but, the complainant claimed to be fine and again reported to the hospital on 26.10.2015 in order to get her stitches removed. She was told to get the second surgery done which was after CT scan was carried out which showed a hyper dense tubular structure seen in the gall bladder fossa extending into the peritoneal cavity suggestive of foreign body likely residual of the broken drain and needed clinical history. It had a diameter of 4mm and length of 12 cm. Accordingly, on 29.10.2015, procedure for removal of the part of the drain pipe was carried out under general anaesthesia though mini lap (small incision procedure) and abdomen was closed over abdominal drain.  Later on, complainant had also visited the hospital on 20.11.2015 and it was observed having urinary tract infection (UTI) and medicines were prescribed.  It is the case, there was no carelessness on the part of OP-1 as well as OPs 2 to 4. On these lines, the cause is sought to be defended.
3.         OPs 2 to 4 filed their joint written reply and, inter alia, denied any carelessness on their part. It was allegated, there was break or fracture of pipe due to the negligence of the patient.  She was immediately advised second surgery on 21.10.2015, but, she did not turn up claiming to be perfectly fine and on 26.10.2015 she visited the hospital for removal of stitches and CT scan was got done and then on 27.10.2015 second surgery was done vide which this left out piece of drain was taken out.  On these lines, the cause is sought to be defended.
4.         The complainant filed separate rejoinders through her Power of Attorney i.e. Sh. Sative Chauhan was present with her and, therefore, on being executed SPA and acquainted with the facts of the case, had put in affidavits. In the rejoinders filed, allegations made in the consumer complaint were reiterated.
5.         Parties led evidence by way of affidavits and documents.
6.         We have heard the SPA of complainant, learned GP for OP-1, OPs 2 to 4 in person and gone through the record of the case. After scanning of record, our findings are as under:-
7.          Per allegations made in the consumer complaint as well as rejoinders filed by complainant through her SPA shows allegations of medical negligence were attributed against hospital/OP-1, Dr. Dabar, Surgeon/OP-2 and Dr. Bal, Surgeon/OP-3. It is the own pleading of the complainant by way of consumer complaint as well as rejoinder filed, first surgery was done on 17.10.2015 by OPs 2 & 3 and on 21.10.2015, the drain was also removed by para medical staff as well as OPs 2 & 3.  These are the allegations in nutshell made by the complainant. It is also her case, OP-2 on 21.10.2015 while the drain was removed had told the complainant that everything is normal.  These are the affirmative and positive allegations levelled, therefore, either the drain was broken while inserting for the first time on 17.10.2015 or say 21.10.2015 by the para medical staff acting under the supervision of OPs 2 & 3, though in the written statement OP-4 had also advised second surgery on being detected on 21.10.2015. 
8.         Thus, in nutshell, allegations of medical negligence are attributed towards Dr. Dabar and     Dr. Bal, OPs 2 & 3 respectively. OP-4, Dr. Sarabjeet Singh was not a member of the team at the time of first surgery on 17.10.2015 and as per the allegations made in the consumer complaint, as well as in the rejoinders furnished, on 21.10.2015 the para medical staff as well as Dr. Dabar and Dr. Bal had got it removed and she was told of being fit and fine on the date of removal of the drain, though by way of furnishing the joint reply the facts have been inter mixed inter se OPs 2 to 4.  Positive allegations of medical negligence have been levelled against OPs 2 & 3 and Dr. Sarabjeet Singh figure nowhere at the time of first surgery as well as at the time of removal of drain though definitely he was a member of surgical team which had done the second surgery on 29.10.2015 at the time of removal of left out material of drain which comes out to 12 cm. in length. Thus, by merely furnishing a confused reply liability of medical negligence cannot be said to have been put forth against Dr. Sarabjeet Singh/OP-4 who had simply done a corrective surgery.  As such, we are of the opinion, no case of medical negligence is allegated or proved against Dr. Sarabjeet Singh, OP-4 and he gets clean chit of charges of medical negligence.  We hold so.
9.         Now we will switch over to the fate of OPs 1 to 3. It is the admitted case that first surgery was done by Dr. Dabar/OP-2 and Dr. Bal/OP-3 and it is also the case of the complainant, on 21.10.2015 the para medical staff alongwith them had removed the drain and she was told of everything being normal.
10.         Per pleadings of the parties, it is the admitted case that a fragment of the drain of diameter of 4 cm. and length of 12 cm. was left inside the abdomen.  The OPs in their written statement had allegated it was a negligence on the part of the complainant herself as she might have stretched the drain which resulted into fracture and while removal procedure was performed, part of the drain was left inside. 
11.         Per record, we may take note of here, date of admission of the complainant in the OP-1 hospital is 17.10.2015, date of discharge is 19.10.2015 and date of alleged removal of drain is 21.10.2015 i.e. to say one day after the date of her discharge. It is the pleading of the complainant supported by way of affidavit that even on 21.10.2015, Dr. Dabar/OP-2 had claimed of complainant being normal though OPs had made the record otherwise of she being told about the left out foreign object in the body and the second surgery was advised, but, this defence does not appear to be believable for the reason that if a patient is told that some foreign body has been left inside, he/she will definitely respond and go for second surgery. Hence, the allegations levelled by the complainant seems to be truthful that she was told to be fit and fine and her surgery was successful as claimed by Dr. Dabar/OP-2 on 21.10.2015.
12.         Per reply furnished on behalf of OPs, it is their case, para medical staff had removed the drain and on being apprised to Dr. Dabar, it was told to the complainant that there was some foreign body of drain pipe remained inside.  Had there been truth in the reply furnished, then the affidavits of para medical staff could have been obtained who acts under their control to show that the fracture of the drain pipe was done/detected at the time of removal on 21.10.2015.  Non furnishing of such an affidavit of para medical staff suggests that she was told of being normal by Dr. Dabar on 21.10.2015 at the time of removal of drain. 
13.         The OPs have alleged that the pipe was broken due to negligence of the patient as stretch was given and there may be other causes.  On being produced the sample of pipe, it was demonstrated that only with the use of full force with both hands on both sides of the pipe it was broken and not otherwise.  However, in the given situation, when one end of the pipe was inside and another outside, both corners of the pipe could not have been caught and even if there was stretching on the outer drain, it was to come out and there was no question of it being broken. The version of OPs remain uncorroborated for want of affidavits of para medical staff. Lacking off such type of affidavits further shows that either it was broken at the time of insertion or at the time of removal and even the para medical staff acted under the instructions and for the assistance of OPs 2 & 3.
14.         In so far as the literature is produced that in natural process drain was fractured it was after one month when some chemical reactions takes place in the blood chemistry while in the present case, there was hardly one day time from the date of discharge to the date of removal of drain pipe.  The version given that she was asked on 21.10.2015 to get herself prepared for second surgery is not convincing as a patient in this situation when a foreign material is left inside would immediately opt for its removal and not run away.  Desire to live is natural.
15.         We have already referred, as per pleadings, it is apparently a case of negligence as admittedly a 12 cm. of pipe was left inside and the claim was it was broken which does not seem to have been broken unless there was cut inflicted with some sharp edged instrument.  It may be due to negligence of the para medical staff of OP-1 for which OPs 2 & 3 are to be vicariously blamed as the para medical staff is meant for their assistance.  
16.         In the present situation, the initial burden has been discharged by the complainant of medical negligence on the part of OPs 1 to 3.  Now it is for OP-1 Hospital or OPs 2 & 3, the attending doctors, to satisfy the court that there was no lack of care or diligence on their part.  In this situation, onus to convince the Court shifts on to the hospital or attending doctors.  Hon’ble Apex court in case titled as Nizam Institute of Medical Sciences Vs. Prasanth S. Dhananka & Ors, (2009) 6 SCC 1, had held as under :-

“Moreover in a case involving medical negligence once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or doctor concerned, the onus shifts on to the hospital or attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence.”

The Hon’ble Apex Court had applied the doctrine of res ipsa loquitur. Applying the ratio of the aforesaid precedent of the Hon’ble Apex Court alongwith the facts and circumstances of the present case, OPs could not satisfy this Forum that there was no lack of care or diligence on their part.  Their case that this had happened due to negligence of the complainant does not cut any ice for the simple reason that she was fine on 19.10.2015 and one day thereafter while it was removed.  It is not their case that due to fracture some blood had oozed out or say that blood and liquid had accumulated inside as it was not drained out itself shows that it was negligence on the part of OPs 1 to 3 and explanation given by them to discharge this onus is not acceptable to us at all. 

17.         Again in case titled as Dr. Khusaldas Pammandas vs The State Of Madhya Pradesh, AIR 1960 MP 50 and Achutrao Haribhau Khodwa Vs. State of Maharashtra & Ors., 1996 SCC (2) 634 the Hon’ble Apex court had applied the principle of res ipsa loquitur in a case of medical negligence and the OPs have failed to discharge the burden that they were not lacking of in care and diligence. 
18.         The learned Govt. Pleader at the pitch of his voice contended if it was a case of medical negligence, as such an expert committee ought to have been formed to determine it being a case of medical negligence or otherwise.  We could lay our hands on a case titled as V. Kishan Rao vs Nikhil Super Speciality Hospital & Anr., (2010) 5 SCC 513 and the Hon’ble Apex Court has held as under :-

                “This Court makes it clear that in these matters no mechanical approach can be followed by these Foras. Each case has to be judged on its own facts.  With this precedent now the Consumer Fora in the country need not necessarily refer the cases of medical negligence to expert committee.”

 

Thus, in view of the authoritative precedent of the Hon’ble Apex Court, we do not accept the arguments of the learned Govt. Pleader and discard it. 

19.         Another contention of the learned Govt. Pleader is, complainant herself has not filed the consumer compliant, but, her Power of Attorney, Sh. Sative Chauhan has filed it who is said to be the an educated person and near relative of the complainant, Smt. Usha Verma r/o Village Premnagar, P.O. Faral, Tehsil Kumarsain, Distt. Shimla, a far flung area of Himachal Pradesh and she had executed an SPA which is on record authorizing him to file a complaint before the concerned courts i.e. consumer Forum/State Commission, Chandigarh, sign and verify all such applications/complaints, engage any lawyer, sign Vakalatnamas etc., and take steps for the success of the consumer complaint.  Not only this, said Sh. Sative Chauhan by way of rejoinder had claimed that at the time of surgeries, he was present throughout and, therefore, was acquainted with the facts of the present case and, as such, had signed the consumer complaint alongwith affidavit in support thereof.  Hence, evidence of Sh. Sative Chauhan is as good as that of the complainant, Smt. Usha Verma herself and he was specially authorised to act on her behalf, file a consumer complaint and then affidavits.  Hence, we dispel the arguments raised by the learned Govt. Pleader. 
20.         Even the report of medical board dated 8.1.2018 will not help the case of OPs 1 to 3 as it was reported uncommon complication of surgery.  No negligence attributed towards complainant.  Merely scribing no evidence of negligence is not acceptable in view of other produced evidence on record.
21.         It is the case of the complainant, she had to spent Rs.30,000/- prior to the surgeries, Rs.1,50,000/- for necessary items of surgeries as well as attendants; Rs.50,000/- for her travelling and lodging and other expenses at Chandigarh  as she had to come from a far flung area of District Shimla, Himachal Pradesh.  However, no proof to this effect has been produced except the affidavits.  In such a situation, we are to determine reasonable and fair compensation.
22.         In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed qua OPs 1 to 3.  OPs 1 to 3  jointly and severally are directed as under :-

1. To pay to the complainant a sum of Rs.4,00,000/-for causing medical negligence and deficiency in service, as referred to above.
2. To pay an amount of Rs.2,00,000/- to the complainant as compensation for pain, suffering undergone by her and causing mental agony and harassment to her;
3. to pay Rs.50,000/- to the complainant as costs of litigation.

23.         This order be complied with by the OPs 1 to 3 within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 9% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
24.         The consumer complaint qua OP-4 stands dismissed with no order as to costs. 
25.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
06/05/2019	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
hg	Member	Member	President