State Consumer Disputes Redressal Commission
G.D. Sharma vs Azad Singh on 1 October, 2010
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Appeal against the order dated 16.03.2006 passed by District Forum-V, in complaint case no 1974/2006 ) Date of Decision : 01.10.2010 Appeal No. FA-09/278 Dr. G.D. Sharma, D.N. Sharma Hospital Pvt. Ltd., Near Chintpurini Mandir, Sector-14, Sonepat (Haryana) D.N. Sharma Hospital Pvt. Ltd., Near Chintpurini Mandir, Sector-14, Sonepat (Haryana) .. Appellants. VS Shri Azad Singh s/o Sh. Sant Ram r/o Village Khizarpur, Jat Mazara, Tehsil & Distt. Sonepat, Haryana, New India Assurance Co. Ltd., Branch Office on Atlas Road, Sonepat, Haryana. ..Respondents/O.Ps. CORAM M.L. Sahni, Presiding Member
Mrs. Salma Noor, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
M.L. Sahni, Member (Judicial )
1. This appeal is directed against the order dated 16.03.2009, passed by District Forum V, Shalimar Bagh, Delhi , whereby Dr. G.D. Sharma- the OP-1 and D.N.Sharma Hospital Pvt. Ltd.-OP-3, the Appellants alongwith Respondent No-2- the New India Assurance Co. Ltd. (OP-2 before the Forum), have been directed to pay to the complainant Respondent No. 1 Shri Azad Singh, a sum of Rs.
1,00,000/- (one lac) with cost of Rs.
10,000(ten thousands) in the following terms :-
OP-1 shall pay the same within 30 days and in case the payment is not forth coming the complainant shall be free to realize the said amount from OP-2 & 3.
2. Facts as narrated in the Appeal are as follows :
That complainant / Respondent approached to the Appellant on 28.07.2002 for treatment of a chronic non-healing discharging sinus in the left inguinal area ; that the complainant/Respondent gave history of two operations in that area in the past. Although, no record had been brought, yet from the description, it appeared that he was subjected to left inguinal hernia repair and left hydrocelectomy at different sittings in 2001 ; that after the second operation, he developed a sinus, which continued to discharge thin pus, to start with continuously and later intermittently. His left testicle was swollen and had no testicular sensations ; that the patient had been suffering from this sinus for several months, in spite of treatment from various doctors ; that the OP-1/appellant-1 examined the complainant/ Respondent in detail and discussed the options of management with him and the accompanying attendants. He also discussed the findings of the MRI which he had brought with him ; that in view of the chronic infection in the sensitive region of the spermatic cord and the findings of the MRI, the vascular supply of the testicle appeared to be compromised. The complainant/Respondent was given option of a therapeutic trial with the anti tubercular treatment or surgery. He was also warned that the surgical treatment might include the removal of the testicle if the sinus was found entering the spermatic cord and compromising the blood supply of the testicle.
3. It is alleged that the complainant/Respondent stated that he was , fed up with the discharging sinus and wanted to get rid of it urgently. He expressed his desire for surgery even if his left testis was required to be removed. He was, explained that in the presence of a normal testis, removal of the other testis would not cause any physical , hormonal, sexual or reproductive disability ; that if the vascular supply of the testis was compromised, mere removal of the sinus might not be enough to eradicate the disease. The complainant and his uncle signed the written consent document after all the relevant details including the possibility of the removal of left testis was clearly explained to them in their local language ; that the surgery was duly performed. The sinus was a long zig zag track entering the spermatic cord which was found to be nodular and thickened . The vessels appeared to be thrombosed. The sinus was duly excised alongwith a high orchiectomy . The wound allegedly healed satisfactorily and comfortably and the patient/Respondent became symptom free. His chronic disease was duly eradicated . He was discharged on 11.08.2002 and was charged Rs. 3,500/- (three thousands five hundreds), for the procedure.
4. Conversely, allegations made by the Respondent in his Complaint No. 115/04 initially filed before District Forum- VIII, Sonepat (Haryana), precisely stated, are that the Respondent suffering from stomach- ache went to Dr. J.S. Malik of Malik Nursing Home; that Dr. J.S. Malik advised and referred him to Dr. Ravi K. Gupta, M.D.(Radio Diagnosis ) SARAL ADVANCED DIAGNOSTIC PVT. LTD., at E-1070, Saraswati Vihar, Pitampura, Delhi-34 ; that Dr. Ravi Kumar Gupta, prepared the MRI on July 26th ,2002 and received a sum of Rs. 5,000/- against this test, vide receipt no. 12589, (annexure A and annexure A-1) ; that after seeing the MRI report, prepared by Dr . Ravi Gupta, Dr. J.S Malik told the Respondent that thickened spermatic cord would be normalise after some time and there was nothing to worry about nor any type of surgery was required.
5. The Respondent feeling un-satisfied with the opinion of Dr. Malik, on 28.07.2002 went to Appellant-Dr. G.D. Sharma with a view to take second opinion for his ailment and showed the MRI report to Dr. G.D.Sharma ; that after seeing the MRI report and conducting the preliminary investigation, the Appellant admitted him in his hospital on 29.07.2002 and the Respondent was made to deposit Rs. 20,000/- for his treatment but a receipt only of Rs. 3,500/- and Rs. 500/- as annexed with the complaint was issued. Another Receipt of Rs. 20/- (Annexure-B) No. 3545 of D.N. Sharma Hospital dated 28.07.002. The Respondent remained in the hospital of the Appellant for about one month.
6. It is further alleged in the complaint that Dr. Sharma gave the Respondent anesthesia and performed surgery. When the Complainant/ Respondent felt pain in his private parts, he complained to the Appellant, who used to give him heavy dose of the pain killers assuring that the Complainant/Respondent would be relieved of his pain very soon. Even after discharge from the hospital, the Complainant/ Respondent continuing suffering unbearable pain in the operated parts and as per advice of the Appellant, he used to take pain killers with a view to get relief from the pain. Now even after taking pain-killers, it still subsists.
7. Respondent has alleged further that in November, 2002, when he touched his private parts it came to his knowledge that his left testis had been removed by the doctor/respondent who had not told of removal of his testis ; that consent/permission of the Complainant/Respondent or any of his family members for conducting operation either verbal or written was not obtained ; that Respondent arbitrarily removed his left testis with some malafide intentions; that after operation as per report of Dr. S.L. Gupta, MD (Pathology) testis and spermatic cord were unremarkable which means removal of the left testis of the Respondent was not required.
8. As per Report/opinion of Dr. S.L. Gupta, Respondent is under treatment at AIIMS. The doctor concerned at AIIMS seeing the MRI report of Dr. Gupta had opined that operation was not required.
9. It is also alleged that after operation, the Appellant referred the removed part to Dr. S.L. Gupta, MD. Pathologist for Biopsy whose report dated 3.8.2002 is annexure G appended to the complaint ; that the Complainant/Respondent approached Dr. Pankaj Khurana who seeing Biopsy Report opined that operation was not required.
10. According to the Complainant/ Respondent several doctors namely Dr. J.S. Malik, Dr. Ravi Gupta , Dr. S.L.,Gupta and Dr. Pankaj Khurana have opined that no surgery as performed by the Appellant was required.
11. The Complainant/ Respondent prayed for Rs. 20,00,000/- (twenty lacs) only though the loss allegedly suffered by him if estimated in terms of money is to the extent of Rs. 50 lacs.
He also prayed for cost and interest.
12. The above complaint was later on transferred to the District Forum, Delhi by the orders of the National Commission and the Delhi District Forum passed the impugned order.
13. Both the Respondents namely the Complainant and the OP-2-the Insurance Company filed separate replies, while contesting the Appeal.
14. The Respondent No. 1-the Complainant , justifying the impugned order prayed for dismissal of the appeal with exemplary costs, alleging, inter-alia, that the Appellant had fabricated signature of the Respondent No. 1/the complainant without his knowledge as the Complainant is illiterate person and does not sign ; that signatures of his brother stated to be uncle have also been fabricated. There was no medical record suggesting surgery for removal of left testis ; that Appellant removed healthy left testis of the Respondent No. 1 for illegal and malafide reasons and deprived him of natural organ for no fault.
15. The Respondent No. 2-the Insurance Company pleaded inter-alia, that there is no privity of contract between the answering Respondent and Respondent No. 1. Moreover, Respondent No. 1 is not a consumer vis a vis the answering respondent and as such the District Consumer Forum should have dismissed the complaint against them. It is, however, admitted by them that Appellant No. 1 had been issued Doctors Professional Indemnity Insurance Policy bearing no. 353901/46/01290 to the Appellant who had been arrayed as Respondent No. 1 in the complaint filed before the District Forum. The Insurance, which was effective for the period 18.10.2001 to 17.10.2002 has been issued subject to standard terms and conditions of the indemnity policy.
16. We have heard the Appellant No. 1 duly represented by expert Authorized Representative and the Ld . counsel appearing on behalf of Respondents. We have also carefully gone-through the impugned order and examined the material on record.
17. Contesting parties have also filed their written submission to fortify their oral arguments. Same have also been thoughtfully considered.
18. The main plank of the Appellant to assail the impugned order is that before conducting surgery consent of the Respondent/ Complainant was obtained which was duly signed by the complainant/ Respondent and his uncle Shri Chand Singh. The Ld. District Forum in its impugned order after due consideration of the rival contentions of the parties concluded that such a consent was no consent at all for such a surgery performed by the Appellant on the Respondent/ Complainant. The Ld. District Forum has based its finding in this regard on the ratio laid down in the case Samira Kohli Vs Prabha Manchanda (Dr) & Anr. (I) 2008 CPJ 56 (SC) which has also been referred to before us.
19. Having considered the reasoning recorded by the Ld. District Forum in the impugned order in view of the law as laid down in the cited case, we are unable to disagree with the findings of the Ld. District Forum in this regard.
20. Further, on merits also we have noticed that the findings of the Ld. District Forum are founded on Expert opinion of Dr. Hemal, Professor of Neurology, All India Institute of Medical Sciences , which categorically negates the defence of the Appellants. The observations made by the Ld. Forum are quite apposite to be reproduced here :
the hernia repair underwent by the Complainant furnishes no defense to the OP-1 in establishing that there was pus discharging sinus which needed emergent surgery. Moreover, OP-1 did not conduct further test before deciding to go for the procedure but solely went ahead on the basis of MRI report of Saral Advanced Diagnostic Pvt. Ltd. Dr. Hemal replied to another question has affirmed that slides of histopathology were sent to him but the hospital pathology report revealed acute of chronic non septic informatory sinus and as such the left testis of the complainant have been saved.
21. In view of our above discussion, we fail to find any merit in this appeal. The compensation is also quite commensurate with the loss and suffering of the Complainant/ Respondent who is also satisfied with the impugned order.
22. The appeal is accordingly, dismissed. No order as to cost.
23. FDR, if any, deposited by the Appellant be released after completing due formalities.
24. Copy of this order be provided to the parties free of cost and one copy be also sent to concerned District Forum.
(M.L. Sahni) Presiding Member (Mrs. Salma Noor) Member sk