Haryana

Kurukshetra

03/2018

Navjot Kaur - Complainant(s)

Versus

Tulika - Opp.Party(s)

Anand Garg

03 Oct 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

 

Consumer Complaint No.03 of 2018.

Date of instt. 03.01.2018. 

                                                                        Date of Decision: 03.10.2019.

 

Navjot Kaur w/o Shri Ansdeep Singh, r/o village Bakali, Tehsil Ladwa, District Kurukshetra. 

                                                                ……….Complainant.      

                                               Versus

 

1. Dr. Tulika Aggarwal, Aggarwal Nursing Home, Salarpur Road, Kurukshetra.
2. Aggarwal Nursing Home, Salarpur Road, Kurukshetra through its owner.
3. The Oriental Insurance Company Limited, 4E/14, Azad Bhawan, Jhandewalan Ext. New Delhi- 110055 through its Branch Officer. (Policy No.272200/48/2017/20977 and 272200/48/2017/13945).

 

        ………Opposite parties.

 

Complaint under Section 12 of Consumer Protection Act.

 

Before       Smt. Neelam Kashyap, President.    

                   Ms. Neelam, Member.       

                   Shri Sunil Mohan Trikha, Member.                                                   

Present:     Shri Ashutosh Aggarwal, Advocate for the complainant.    

Shri Rajan Chawla, Advocate for the opposite parties No.1                 and 2.

Shri R.K. Singhal, Advocate for the opposite party No.3.

           

ORDER

                                                                         

                    This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Smt. Navjot Kaur against Dr. Tulika Aggarwal and others, the opposite parties.

2.             The brief facts of the complaint are that the complainant had approached the OPs on 11.05.2017 as the complainant was in family way. On 11.05.2017, she was admitted with 38 weeks pregnancy in the OP No.2 nursing home. All the previous operations history and medical history were duly disclosed to the OPs. After conducting all the necessary medical tests, she was operated and caesarian delivery was done under Spinal Anaesthesia by the OPs. On 11.5.2017 at 12.12 p.m., she gave birth to a male boy of 3.2 Kg. and discharged on 15.5.2017 and issued discharge summary with the important remarks as “The post delivery period was uneventful. Urinary and bowl movement normal. Stitch line healthy. Dressing done, Patient’s condition is now stable and she is being discharged in a satisfactory condition on 15.5.2017”. It is further averred that the complainant paid cash amount of Rs.50,500/- to the OPs, which were duly withdrawn by the husband of the complainant from his bank during the period 9.5.2017 to 12.5.2017. At the time of discharge, she was told by the OPs that the operation was done very confidently and post operation period will also be successful. Since the date of discharge from the OPs, she was suffering from fever and uneasiness with swelling of stomach and related problems and in this regard, when she approached the OPs on 21.5.2017, the OPs prescribed few medicines which were of not any use being not able to cure her in any way. Then she again approached the OPs on 30.05.2017, but again she was prescribed few medicines alongwith ‘Protinex’ only, which were again being of no medical cure to her health. At last, on 18.08.2017, she took expert medical consultation from Landmark Hospital, Sector-33C, Chandigarh and thorough investigation by way of different medical tests was done. She was provisionally diagnosed as ‘Incisional Hernia’. Subsequently, the complainant was got admitted there on 25.08.2017 and final diagnose came as ‘Incisional Hernia with Obesity’. The operation was done and procedure opted as ‘Mesh Hernioplasty with Abdominoplasty (26 x 36 cm mesh used) under GA 25/08/2017 and further drain was kept and she was discharged in satisfactory condition on 27.08.2017. She paid Rs.20,000/- vide receipt No.1740 dated 19.8.2017 and Rs.1,70,000/- vide bill No.08/2017/519 dated 27.8.2017. It is further averred that OPs did not perform its duty as per prescribed medical practice. Had the OPs done the operation as per the prescribed medical practice i.e. the region along a straight line from the xiphoid process of the sternum straight down to the pubis be repaired via a tension free repair method using a synthetic, she would not have to go so much of physical and mental stress till today. The complainant is still under medical treatment and is spending huge amount on medicines. The complainant is not able to do any house hold work in day to day routine life and is always wearing abdominal binder till today which is also a painful stress physically and mentally. She is still always feeling ‘itching’ on the stitches till today, stitched by OPs and even sometimes, they said stitches oozes out sticky fluid too and the complainant is also facing gas problem in stomach till today. She is educated and was earning by way of boutique work and is also an income tax assessee, wherein, she was earning Rs.2,68,450/- and Rs.2,94,500/- as ITR of Assessment Year 2015-16 and 2016-17 respectively, but now she is not able to do any earning work, because of said problem due to the medical negligence and deficiency in service of the OPs. Hence, this complaint.

3.             Upon notice, the opposite parties No.1 & 2 appeared and filed written statement raising preliminary objections regarding maintainability; locus-standi and bad for mis-joinder & non-joinder of necessary parties. It is stated that the complainant has concealed the true & material facts from this Hon’ble Forum. The complainant was un-booked patient, never visited to the hospital of the OPs prior to 11.05.2017. She reported in emergency with Gravida 3 with previous 2 live issues with the history of previous 2 caesarean sections with Obesity with mild pregnancy induced hyper tension. The Abdomen opened by mild line vertical is incision in layers. Obesity plus, adhesion present, because of previous two caesareans. Male baby delivered by vertex followed by complete delivery of placenta, uterus stitched into layers. Counts complete and checked. Abdomen closed in layers with vicryl no.1 and ethilon no.1. Pressure dressings done due to obesity. Complete course of antibiotics and analgesics given. Dressing changed on 4^th post of day. Stitch line healthy. Urine and Motion passed without any difficulty. Patient discharged in healthy condition with 5 days of antibiotics and pain killers. Stitch removal done after 5 days of discharge from hospital. Stitch line healthy. Patient called again for dressing after 5 days, patient never turned up for follow up for such complaint. No history of fever and infections up till that time as per the OPD record. The surgery of the complainant was done by the OPs by way of mild line vertical incision, because she was a case of previous two caesarean section and obesity and lot of adhesion were excepted, because of previous two surgeries, mild line vertical incision gives enough exposure for delivery of baby from adhered uterus. However, the medical literature clearly state that the women are more at risk for hernia if they are obese (the extra weight puts additional pressure on the stomach), have larger number of caesarean incisions as in this case and having the scar tissues not strong because of multiple pregnancies. The hernia does not always develop immediately after caesarean delivery. The hernia can occur due to involvement in physical activity such as lifting a heavy object and severe cough and severe constipation. It is also pertinent to mention here that patient was referred to the gynecologist by surgeon in the month of August and at that time also no gynecological complaint was found and patient was referred back to surgeon with the diagnosis of incisional hernia with obesity for which she was operated as mentioned in the discharge summary of the complainant of Landmark Hospital placed on the file. The OP No.2 is a qualified MBBS, MS (Obst. & Gynae) working as Gynecologist with OP No.1, the well reputed hospital in the area and both having good reputation in the medical profession and performing their duties as per medical ethics. There is no deficiency on the part of the OPs and the present complaint filed by the complainant, may be dismissed with heavy costs.

                During the pendency of the case, the OP No.1 moved an application for impleading the insurance company as OP No.3 in the array of parities, which was allowed vide order dated 15.05.2018 by this Forum. Amended title filed. As such, Oriental Insurance Company Limited was impleaded as OP No.3 in the present complaint. On notice, the opposite party No.3 appeared and filed written statement taking preliminary objections regarding maintainability; locus standi; complaint is bad for mis-joinder & non-joinder of necessary parties and privity of contract. It is further submitted that the complainant had not produced any opinion of the medical board. There was no negligency on the part of the OPs No.1 & 2. The complainant alleged that she was admitted in Landmark Hospital on 25.08.2017, whereas, she was discharged from the hospital of OPs No.1 & 2 on 15.05.2017 and there was a gap of more than 3 months and she had not explained as to where she remained for these three months. Moreover, the complainant had taken the alleged treatment from Landmark Hospital, Chandigarh for some different problem. A false and fabricated story has been put forward in the present complaint to extort the money from the OPs. No intimation was ever given by the complainant to the OP No.3 regarding the treatment by OPs No.1 & 2 and regarding the negligence, if any on the part of the OPs No.1 & 2. There is no medical negligency on the part of the OP No.3 and present complaint may be dismissed against the OPs with heavy costs. However, it is pertinent to mention here that during the pendency of the complaint, the complainant moved an application for summoning the witness, which was allowed. Accordingly, Dr. Vivek Singla, Consultant, Landmark Hospital, Chandigarh appeared and filed his affidavit as Ex.CW2/A.

4.             The learned counsel for the complainant tendered affidavit Ex.CW1/A alongwith documents Ex.C-1 to Ex.C-21 and closed the evidence. On the other hand, learned counsel for OPs No. 1 & 2 tendered affidavits Ex.RW2/A, Ex.RW3/A alongwith documents Ex.R-3 to Ex.R-15 and closed the evidence. The learned counsel for the OP No.3 tendered affidavit Ex.RW1/A alongwith documents Ex.R-1 & Ex.R-2 and closed the evidence.          

5.             We have heard the learned counsel of the parties and carefully gone through the case file and also the written arguments filed by the learned counsel for the complainant and the case laws referred by the learned counsel for the complainant as well as by learned counsel for the OPs No.1 & 2.

6.             The learned counsel for the complainant has reiterated all the averments mentioned in the complaint. He argued that on 11.05.2017, the complainant was admitted with 38 weeks pregnancy in the OP No.2 nursing home and she was operated and caesarian delivery was done under Spinal Anaesthesia by the OPs on 11.5.2017 at 12.12 p.m. and discharged on 15.5.2017 and paid cash amount of Rs.50,500/- to the OPs by her. At the time of discharge, she was told by the OPs that the operation was done successfully and post operation period will also be successful. Since the date of discharge from the OPs, the complainant was suffering from fever and uneasiness with swelling of stomach and when the complainant approached the OPs initially on 21.5.2017 and thereafter on 30.05.2017, but she was prescribed few medicines alongwith ‘Protinex’ only. At last, on 18.08.2017, she took expert medical consultation from Landmark Hospital, Sector-33C, Chandigarh and got admitted there on 25.08.2017 and final diagnose came as ‘Incisional Hernia with Obesity’. The operation was done and procedure opted as ‘Mesh Hernioplasty with Abdominoplasty (26 x 36 cm mesh used) under GA 25.8.2017 and further drain was kept and she was discharged in satisfactory condition on 27.08.2017 and in this regard, paid Rs.20,000/-and Rs.1,70,000/- respectively. He further argued that the OPs did not perform its duty as per prescribed medical practice. The complainant is still under medical treatment and is spending huge amount on medicines. The complainant is not able to do any house hold work in day to day routine life and is always wearing abdominal binder till today which is also a painful stress physically and mentally. She was earning by way of boutique work, but now she is not able to do any earning work. He further argued that before performing the treatment, the OPs No.1 & 2 had not sought any written consent in this regard from the complainant or his family members. This way, the OPs are deficient in providing the medical services. In support of their contentions, the learned counsel for the complainant has placed reliance on the cases, titled as Bhushan Raina through LRs Vs. Dr. S.K. Jain, First Appeal No.231/2008, d.o.d. 02.05.2019; Sitaram Bhartia Institute Vs. Vidya Bhushan Jain & 3 Ors., d.o.d. 05.05.2017 (NC) and Dr. Baidya Nath Chakraborty Vs. Shri Chandi Bhattacharjee, First Appeal No.19 of 2009, d.o.d. 24.04.2014 (NC).

7.             On the other hand, the learned counsel for the OPs has reiterated all the averments mentioned in the written statement. He argued that the complainant was reported in emergency with high blood pressure and with Gravida 3 and previous 2 live issues with the history of previous 2 caesarean sections with Obesity with mild pregnancy induced hyper tension. In the case of emergency, it is firstly necessary to save the life of the patient. The Abdomen opened by mild line vertical is incision in layers. Obesity plus, adhesion present because of previous two caesareans. Male baby delivered by vertex followed by complete delivery of placenta, uterus stitched into layers. Abdomen closed in layers with vicryl no.1 and ethilon no.1. Pressure dressings done due to obesity. Complete course of antibiotics and analgesics given. He further argued that stitch line healthy and Urine & Motion passed without any difficulty. Patient discharged in healthy condition with 5 days of antibiotics and pain killers. Stitch removal done after 5 days of discharge from hospital. Patient called again for dressing after 5 days, patient never turned up for follow up for such complaint. No history of fever and infections up till that time as per the OPD record. The surgery of the complainant was done by the OPs by way of mild line vertical incision, because she was a case of previous two caesarean section and obesity and lot of adhesion were expected, because of previous two surgeries, mild line vertical incision gives enough exposure for delivery of baby from adhered uterus. He further argued that the medical literature clearly state that the women are more at risk for hernia if they are overweight (the extra weight puts additional pressure on the stomach), have larger number of caesarean incisions as in this case and having the scar tissues not strong because of multiple pregnancies. It is also pertinent to mention here that patient was referred to the gynecologist by surgeon in the month of August and at that time also no gynecological complaint was found and patient was referred back to surgeon with the diagnosis of incisional hernia with obesity for which she was operated in Landmark Hospital. He further argued that he OP No.2 is a qualified MBBS, MS (Obst. & Gynae) working as Gynecologist with OP No.1, the well reputed hospital in the area and both having good reputation in the medical profession and performing their duties as per medical ethics. There is no medical deficiency on the part of the OPs. In support of his contention, the ld. counsel for the OPs No.1 & 2 has placed reliance on the cases, titled as Arikala Narasa Reddy Vs. Venkata Ram Reddy Reddygari & Anr., Civil Appeal No.5710-5711 of 2012, d.o.d. 04.02.2014 (SC); Dr. C. Balasubramaniam Vs. Subramani, FA No.527/2010 & 547/2010, d.o.d. 20.04.2012 (Tamilnadu State Commission) and Vinod Jain Vs. Santokba Durlabhji Memorial Hospital & Anr., Civil Appeal No.2024 of 2019, d.o.d. 25.02.2019 (SC).

8.             The learned counsel for the OP No.3 has argued that the complainant had not produced any opinion of the medical board. The complainant alleged that she was admitted in Landmark Hospital on 25.08.2017 and discharged on 15.05.2017 and there was a gap of more than 3 months and she had not explained as to where she remained for these three months. The complainant had taken the alleged treatment from Landmark Hospital, Chandigarh for some different problem. There is no medical negligency on the part of the OP No.3.

9.             There is no dispute that the complainant was admitted with 38 weeks pregnancy in the OP No.2 Nursing Home and caesarian delivery with Bilateral Tubal Ligation was done on 11.05.2017 by the OPs No.1 & 2 under Spinal Aneasthesia and the complainant delivered male baby of 3.2 Kg. and discharged on 15.05.2017, as is evident from Discharge Summary Ex.C-1. From the front and backside of Ex.C-1, it is also evident that the complainant had taken follow-up treatment from the OPs No.1 & 2 on 21.05.2017 and thereafter on 30.05.2017 and the OPs No.1 & 2 prescribed few medicines alongwith ‘Protinex’. From the Prescription Slips Ex.C-3 & C-7, Ultrasound Report Ex.C-4, Lab Reports Ex.C-5 & C-6 and Discharge Summary Ex.C-8 of Landmark Hospital, it is apparent that the complainant was admitted in that hospital on 25.08.2017 and diagnosed as ‘Incisional Hernia with Obesity’ with procedure ‘Mesh Hernioplasty with Abdominoplasty (26 x 36 cm mash used) under GA 25/08/2017 and discharged on 27.08.2017. However, it is not understandable that if the complainant was having problems from the very beginning due to the wrong procedure adopted by the OPs No.1 & 2 in her surgery (as alleged by the complainant herself), then whey she had not visited/consulted the OPs No.1 & 2 in this regard and she remained mum from 30.05.2017 to 25.08.2017 i.e. about more than 2½ months and then she directly operated for the said problem/disease from the other hospital, which raises serious doubt to the contention of the complainant.

10.            The OPs No.1 & 2 has contended that where the open abdominal surgery is done, there are chances of incisional hernia obesity, weak abdominal musculature, poor nutrition, chronic cough, multiple surgeries. In this regard, the OPs No.1 & 2 has relied upon the case law titled as Dr. C. Balasubramaniam Vs. Subramani (supra), wherein, the Hon’ble Sate Commission, Tamilnadu, Chennai has held that “From these details it is clear that any person who undergoes open abdominal surgery, is at risk for incisional Hernia and those risk factors are obesity, weak abdominal musculature, poor nutrition, chronic cough, multiple surgeries and in this case complainant has not come forward to prove what are the post operative management of case he had taken and advices followed etc., as apart from the treatment by the doctor the patient care and follow up action in management of treatment are also must for the complete healing of ailment”. This authority is fully applicable to the facts of the present case. In the present case, the complainant also got operated for ‘Incisional Hernia with Obesity’, which might be due to above-mentioned reasons and not due to the treatment/surgery performed by the OPs No.1 & 2.  

11.            However, on the request of the complainant, Dr. Vivek Singla, Consultant of Landmark Hospital, Chandigarh was also called, who filed his affidavit Ex.CW2/A. In that affidavit, the said doctor has nowhere mentioned that the complainant/patient was suffering from the said problem/disease of hernia due to her previous surgery/operation done by the OPs No.1 & 2. So, this affidavit has not favourable to the case of the complainant. 

12.            The contention of the complainant that before performing the treatment, the OPs No.1 & 2 had not sought any written consent in this regard from the complainant or his family members, has also no force, because in this regard, the OPs No.1 & 2 produced Consent Form (backside on Ex.R-4), wherein, the husband of the complainant has made his duly signed undertaking dated 11.05.2017 that their children were caesarean and they wanted to perform the operation with their own will. From the Internet, definition of “Abdominoplasty” was taken out that “Abdominoplasty or “tummy tuck” is a cosmetic surgery procedure used to make the abdomen thinner and more firm. The surgery involves the removal of excess skin and fat from the middle and lower abdomen in order to tighten the muscle and fascia of the abdominal wall. This type of surgery is usually sought by patients with loss or sagging tissues after pregnancy or manor weight loss”. From this definition, it is clear that the Abdominoplasty which was done by the complainant from Landmark Hospital, might be done for removal of excess skin and fat from the middle and lower abdomen in order to tighten the muscle and fascia of the abdominal wall.

13.            The next contention of the complainant is that she paid cash amount of Rs.50,500/- to the OPs No.1 & 2, which were duly withdrawn by the husband of the complainant from his bank during the period 09.5.2017 to 12.05.2017 vide statement of account Ex.C2 (A) & Ex.C2 (B), but from the perusal of said statement of account, it cannot be said that husband of the complainant had withdrawn the said amount for the said purpose. The complainant has also not produced any bill of concerned hospital in this regard. Moreover, the OPs No.1 & 2 contended that they had taken Rs.27,000/- from the complainant for her surgery. In this regard, the OPs No.1 & 2 has produced IPD Bill receipt of Rs.27,000/- of complainant as Ex.R-3 on the case file. So, this contention of the complainant that they paid Rs.50,500/- as treatment charges to the Ops No.1 & 2, has also no force. The case laws produced by the OPs, is fully applicable to the facts of instant case, whereas, the case laws relied upon by the complainant are not applicable to the present case and are distinguished being rested on different footings. Keeping in view the case laws laid down by the superior Fora in the cases referred to above and the facts and circumstances of the present case, we are of the considered opinion that the complainant has failed to prove any medical negligency on the part of the OPs No.1 & 2 through any reliable and cogent evidence, rather it is proved on record that OPs No.1 & 2 adopted standard method of treatment for the treatment of the complainant. The OP No.3 is the insurance company, who insured the OPs No.1 & 2. Since no medical negligency on the part of the OPs No.1 & 2 has been proved, therefore, complaint against the OP No.3 ‘being insurance company, is also liable to be dismissed.

14.            In view of the aforesaid discussion, we find no merit in the present complaint and same is hereby dismissed against the OPs with no order as to costs. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance. 

 

Announced in open Forum:

Dt.:03.10.2019.                                                   (Neelam Kashyap)

                                                                        President.

 

 

(Sunil Mohan Trikha),           (Neelam)       

Member                             Member.