Sri. Ashok Kumar J.Dhole,<br /> President,<br /> <br /> 1. This complaint is filed by Sri.Bopanna against O.P.1 to 3 on the ground of medical negligence, claiming an amount of Rs.2,25,000/- with cost and interest.<br /> 2. Notices were issued to O.P.1 to 3. O.P.1 and 2 appeared and contested the matter. It was informed that O.P.3 has left India and his address is not available. Hence, complainant filed a memo and the case is not pressed against O.P.3. Hence, complainant is dismissed as against O.P.3. During pendency of this complaint, O.P.1 and 2 moved an application to implead the New India Assurance Company Ltd., as O.P.4, as they have issued professional indemnity bond in favour of O.P.1 and 2. Accordingly O.P.4 was also brought on record.<br /> 3. We do not indents to re-produce the lengthy pleadings of the parties. The case, which is made out by the complainant from his pleadings and evidence could be briefly summarized as under:-<br /> Complainant Bopanna is a businessman, aged about 36 years and residing at Naladi village, in Kodagu District. The complainant has got Renal stone problem since 1999. This problem was first noticed by the complainant in the year 2002, when he was treated at a hospital at Mangalore for some injury to his hand. At that time, he was advised to undergo regular examination every 6 months, but he kept quite till the year 2004 (vide para 3 of evidence). It appears that the renal stone started giving him problem in the year 2004. It is the case of complainant that he consulted O.p.1 Dr.Ranganath, who is a Urologist and as per his advise, he was admitted as inpatient in Vikram Hospital for treatment on 16-11-04. His MRD No. is 114274. After conducting preliminary tests, he has undergone procedure called “Right PCNL” under GA on 7-11-04. This procedure was conducted by O.P.1 Dr.Ranganath with the assistance of O.P.2 Dr.Krishna Rao and O.P.3 Dr.Raghavendra who are also Urologists. During investigation, it was noticed that there was 3.5. cm calculus in the pelvis(renal) extending on the inferior calyx. The complainant was discharged from the hospital. He was advised to come for review on 7-12-04, but he could not approach O.P.1 on the give date. It is further case of the complainant that he went for check-up on 5-1-05 and O.P.1 informed him that there is no problem and the stone has been removed.<br /> 4. It is the case of complainant that inspite of procedure, he was having discomfort. On 25-4-05 he went to Bangalore and got himself examined at Medical Diagnostic Library named “ELBIT”. Dr.Vinod Joseph who is a Radiologist, conducted Ultrasound scanning of abdomen and pelvis. He gave a report that 8 mm sized calculus is noted in the renal pelvis. This report is sufficient to prove that O.P.1 to 3 were negligent in conducting the procedure. They have not removed kidney stone as assured by them, due to which complainant has incurred heavy expenses. It is the case of complainant that he spent Rs.50,000/- when he treated at Vikram hospital, Mysore. It is further stated that he spent Rs.1,000 for investigation at Bangalore. He has claimed total medical expenses of Rs.1 lakh, apart from amount of Rs.25,000/- which was paid by TTK Insurance Co. Ltd., to O.P.1 to 3.<br /> 5. Lengthy version was filed by O.P.1 and 2 dening all most all facts mentioned in the complaint, except treatment given to the complainant from 16-11-04 to 25-11-04 and 5-1-05. It is contended by O.P.1 and 2 that after 5-1-05, the complainant never came and consulted these O.P.’s till this complaint was filed for the month of October 2005. The complainant has not incurred expenses of Rs.50,000/- as mentioned in the complaint. As per the records, the total bill for 9 days was Rs.36,800/-. After providing special discount, the complainant remitted only Rs.11,800/- and the balance amount of Rs.25,000/- was paid by the TTK Insurance Co. Ltd., Hence, the complainant has claimed imaginary amount from the O.P.s. It is further contended that pre-operative and post-operative care was properly taken by O.P.1 and 2. After required investigation, the minimum invasive procedure was done on the right kidney on 17-11-04 under G.A. Procedure called “PCNL” was conducted. After this procedure, the complainant developed minimal right pelvis collection, which was managed conservatively. After post-operative examination, he was advised stone diet and plenty of oral fluids every day. He was discharged from the hospital on 25-11-04. There was no negligence on the part of O.P.1 to 3 in carrying such procedure. The complainant came for further check-up on 5-1-05, and at that time, the stent was found insitu. Under local anesthesia, right sided stent was removed. For removal of such stent ureteroscope was inserted. The procedure was simple and the complainant was treated as outpatient. The complainant never came for review, thereafter. This complaint is filed only on imaginary facts, hence, prayed for dismissing the complaint with cost.<br /> 6. Heard the learned counsel for both sides. Complainant has examined Dr.Vinod Joseph as C.W.1, who has given ultrasound scanning report dated 24-5-05. Complainant has not examined any other witnesses or an expert. O.P.s have examined 3 witnesses marked as R.W.1 to R.W.3.<br /> 7. It is important to note that this complaint was initially filed by the complainant in person. Subsequently, the prosecution was continued by Sri.Mahadeva, Advocate who retired on the ground of personal health. Thereafter, another Advocate continued the complaint till the stage of argument.<br /> 8. The learned counsel for complainant mainly relied on the evidence of Dr.Vinod Joseph, and his reported dated 24-5-05. He further submitted that if the stone of 3.5 cm was removed on 17-11-04, there was no possibility of re-occurance of a stone measuring 8 mm on 24-5-05. As per the evidence of R.W.1 and his report. Such presence of stone itself is sufficient to show that there was medical negligence on the part of O.P.1 to 3.<br /> 9. The learned counsel for O.P.’s vehemently argued and submitted that complainant was operated ion 17-11-04 and this complaint filed in the month of October 2005, that is nearly after a period of eleven months. As per the complainant’s case, if stone of 8 mm is left during earlier surgery, the complainant is bound to face the problem. Though, complainant has claimed huge amount towards medical expenses, treatment etc., he has not produced any document to prove these facts. Complainant has not examined any expert in support of his case. Under such circumstances, the learned counsel for O.P. prayed for dismissing the complaint with exemplary cost. He relied on the medical literature from “COMPBELL’S UROLOGY” by Walsh Retic Vaughan Wein.<br /> 10. Points for our consideration are as under:-<br /> 1. Whether complainant has proved that there was medical negligence on the part of O.P.1 and 2 when they have undertaken the procedure of PCNL on 17-11-04, and they have left behind a piece of stone measuring 8 mm as contended by the complainant?<br /> 2. Whether complainant is entitled for damages claimed by him?<br /> 3. What order?<br /> 11. Our findings on the above points are as under:-<br /> 1. Point no.1 and 2 : Negative.<br /> 2. Point no.3 : As per final order.<br /> <br /> REASONS<br /> <br /> 12. Points no. 1 to 3:- At the outset, we may like to mentioned that this complaint is creation of a fiction of the complainant. He has not consulted any Urologist after 17-11-04 till the date of complaint or even subsequently. There is no opinion of any Urologist that a piece of stone measuring 8 mm was left behind by O.P.1 and 2 when the procedure was conducted on 17-11-04. The complainant has assured such negligence only on the basis of the report given by Dr.Vinod Joseph on 24-5-05 and filed this complaint. If we read the complaint carefully, it will be clear that there is comparison of the discharge summary, with that of the report given by Dr.Vinod Joseph and ultimately claiming huge amount of Rs.2,25,000/- from the O.P.s. Such approach is unjust and improper.<br /> 13. Though complainant has claimed an amount of Rs.2,25,000/-, the documents which are produced by the O.P. are sufficient to come to conclusion that the total bill for the procedure was only Rs.36,800/-. An amount of Rs.11,800/- was paid by the complainant and the balance amount of Rs.25,000/- was made good by the TTK Insurance Co. under “Yashashwini Scheme” sponsored by the Government. Hence, claim of the complainant that he spent huge amount for the procedure and medicine is not proved. There is no evidence on record to show that complainant has ever faced physical discomfort from 5-1-05 (after stent was removed) till this complaint was filed. Complainant admits during cross-examination that he never consulted any Urologist about such procedure. Such being the case of complainant, we have to come to conclusion that the case of complainant is not supported by any experts evidence to prove any kind of negligence on the part of O.P.1 and 2; either pre-operative or during operation or post-operative. Keeping in view of the above aspects, we proceed to evaluate the evidence of C.W.1 and 2.<br /> 14. In the olden era procedure was carried for removal of the renal stone called “OSS”. It was invasive procedure and the presence of residual fragments of any size suggested a failed procedure. In simple words, the entire stone was removed from the renal area without fragmentation. However, the introduction of the new procedure like ESWL or PNL (PCNL) as the treatment of choice for most upper urinary calculi has changed the definition of successful treatment, introducing the concept of “Clinically Insignificant Residual Fragments” (CIRF). This aspect is made clear on page no.3377 of the above referred book. There are various procedures like :<br /> 1. Extra Corporeal Lithotripsy which causes insitu fragmentation fo the stone. This procedure is called “Non-invasive procedure”. <br /> 2. Larger fragments are removed by systoscopy. <br /> 3. Percutaneous ultrasonic lithotripsy is done. These procedures are minimal invasive procedures. <br /> The medical litrature clearly indicates that under MIP procedure small fragments of the stone remain, but they are called as “Clinically Insignificant Residual Fragments”. The evidence of C.W.1 Dr.Vinod Joseph is of no much use to the complainant as he is not a Urologist. He has not given evidence that a fragment of stone, which was allegedly measuring 8 mm, which was seen by him during ultrasound scanning examination was left behind by O.P.1 and 2 during the procedure dated 17-11-04. His evidence at the most, speaks about his finding on 24-5-05. During cross-examination he clearly admits that there is no accurate system of measuring the size of the calculus in ultrasound scanning, and if the calculus is of a smaller size, it is more difficult to give accurate size of the calculus. This evidence clearly indicates that the size of the stone, which is mentioned in his report as 8 mm can not be accepted as conclusive evidence.<br /> 15. The complainant once again visited Vikram Hospital on 13-6-05 and has gone ultrasound examination by Keshav Raichurkar who is examined as R.W.3. The report issued by Vikram hospital dated 13-06-05 indicates the presence of distal shadow of 5 mm stone in the right kidney and 4 mm stone in the left kidney. Whereas the report given by C.W.1 Dr.Vinod Joseph shows no stone in the left kidney. Dr.Joseph admits during cross-examination that there is no possibility of developing stone of such a size within a period of 15 days. This clearly indicates that Dr.Vinod Joseph might not have noticed presence of a smaller stone of 4mm in the left kidney, when he conducted ultrasound examination of the complainant. Similarly, the size of the stone, which was reported as 8 mm by Dr.Joseph may not be accurate, it may be of a smaller size measuring 5mm as stated by R.W.3 Dr.Keshav Raichurkar. C.W.1 Dr.Joseph admits during cross-examination that if the same patient is examined by two doctors, there will be difference regarding the size of the calculus. In view of the above fact, we can not treat the evidence of C.W.1 as evidence of expert to brand O.P.1 and 2 with medical negligence. The evidence of C.W.1 Bopanna is of no much use to prove the medical negligence. He admits in para 6 of cross-examination that from 13-6-05 up till now he is not having any problem. This clearly indicates that the stone, which was noticed in right kidney is “Clinically Insignificant Residual Fragments” and we can not rule out the formation of such stone during this long period from 17-11-04 to 24-5-05. There is no evidence to show that once procedure is undergone, the stone will never form. The important observations by COMPBELL’S in his Urology is reproduced for ready reference :-<br /> “In the era of OSS, the presence of residual fragments of any size suggested a failed procedure. However, the introduction of ESWL as the treatment of choice for most upper urinary calculi has changed the definition of a successful treatment, introducing the concept of clinically insignificant residual fragments (CIRF)”.<br /> “Therefore, since the introduction of ESWL, treatment results for renal calculi have been reported in the literature using two different terms, stone-free rate and success rate, which includes stone-free patients and patients with CIRF at 3 months’ follow-up. The existence of different methods of reporting treatment results, lack of consensus regarding the definition of CIRF, and the various modalities used for assessing postprocedural stone-free rate make comparison of various endourologic stone removal procedures and ESWL difficult.”<br /> “CIRF were defined initially as residual nonstruvite fragments less than 5 mm in diameter associated with sterile urine in an otherwise asymptomatic patient.”<br /> “Stone recurrence rates of 6% to 15% have been reported for patients who were rendered stone free after ESWL.”<br /> “In a long term prospective study; residual fragments (smaller than 4 mm) after ESWL were found to pass spontaneously in 24% of patients, whereas increased, decreased, and stable amounts of residual fragments were noted in 18%, 16% and 42% of patients, respectively (Streem et al, 1996).”<br /> “In early studies, most authors used plain x-ray for evaluation of stone-free status after ESWL. A plain x-ray can detect an opaque stone fragment as small as 2 mm.”<br /> 16. Before concluding, we may like to refer briefly to the evidence of R.w.1 to 3. R.W.1 Dr.M.S.Ranganath is a main Surgeon, who has conducted the procedure. As per his evidence, the complainant has undergone ultrasound scanning on 19-10-04, and based on such report, he has advised IVU (Intravenus Urogram) treatment. He further states that complainant came to the hospital on 16-11-04 and he had large stone in the right kidney with obstruction. He further states that x-ray was taken and after preliminary text procedure was conducted. During further cross-examination, he states that the procedure of Systoscopy and right ureteric stenting was done on 20-11-04. The procedure was conducted with the help of “C arm” image intensifier, which is available in the O.T. In other words, he was able to visualize the presence and removal of the stone on the monitor. The evidence of R.W.1 is not shackened in the cross-examination, except in respect of non-obtaining the signature of the patient on the informed consent. But, it is not significant in this case, as the complainant is comfortable for a long time. <br /> 17. Dr.Krishna Rao R.W.2 is also Urologist, who assisted R.W.1 and during cross-examination nothing is reveal to show that there was some negligence on the part of R.W.1.<br /> 18. R.W.3 Dr.Keshav Raichurkar speaks only in respect of ultrasound report, which are referred above.<br /> 19. For the above reasons, we come to conclusion that complainant has miserably failed to prove negligence on the part of O.P.1 to 3. It is a fit case to award compensatory cost because the complainant filed this complaint even without consultation or opinion of an Urologist. Having regard to the fact, that this complaint was filed in person only on the basis of report given by “ELBIT”, we feel it just and proper to exhonourate the complainant. So, point 1 and 2 are answered accordingly and we proceed to pass following order:-<br /> ORDER<br /> <br /> 1. Complaint is dismissed.<br /> 2. Parties to bear the costs.<br /> 3. Give a copy of this order to both parties according to Rules.<br />