State Consumer Disputes Redressal Commission
Dr .Smt. Anita Gonka vs Henath Sharma on 5 February, 2018
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G).
Appeal No.FA/2017/632
Instituted on : 23.09.2017
Dr. Smt. Anita Goenka, MBBS, DGO,
Telipara, Near Ajit Hotel,
Bilaspur (C.G.) .... Appellant (Opposite Party)
Vs.
Shri Henath Sharma,S/o Shri Vijay Prasad Sharma,
Village : Parsada, P.O. Tifra,
P.S. Chakarbhatha, Tah. & Dist. Bilaspur (C.G.) .... Respondent (Complainant)
PRESENT :
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES :
Miss Praveen Arora, Advocate for the appellant (O.P.).
Shri Shaukat Ali, Advocate for the respondent (complainant).
ORDER
DATED : 05/February/2018 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT.
This appeal is directed against the order dated 22.06.2017, passed by District Consumer Disputes Redressal Forum, Bilaspur (C.G.) (henceforth "District Forum") in Complaint Case No. C.C./2014/66. By the impugned order, learned District Forum, has allowed the complaint of the complainant and directed that :-
1. The O.P. will pay a sum of Rs.2,00,000/- (Rupees Two Lakhs) towards treatment expenses to the complainant within a period of one month from the date of order along with interest @ 9% p.a. on the above amount from the date of filing of the complaint i.e. 26.04.2014 till realization.
2. The O.P. will pay a sum of Rs.10,00,000/- (Rupees Ten Lakhs) towards compensation for mental agony to the complainant.
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3. The O.P. will pay a sum of Rs.5,000/- (Rupees Five Thousand) towards cost of litigation to the complainant.
2. Briefly stated the facts of the complaint of the complainant are that the complainant was married with Smt. Mamta Sharma before near about 16 years. After marriage, the complainant had 4 children namely Gaurav Sharma, aged 14 years, Saurabh Sharma aged 12 years, Tarun Sharma aged 7 years and Tripti Sharma 5 years. On 20.04.2015, the wife of the complainant Smt. Mamta Sharma had pain in abdomen for which she was taken to Dr. Sharma Hospital, Bus Stand Road, Opposite Telephone Exchange, Bilaspur, where Dr. Sangeeta Sharma gave some medicines and treated her. On 01.05.2012, she again suffered light pain in her abdomen, and it was decided to take her to a doctor. The familiar person of the complainant told that the O.P. is a good doctor, and advised the complainant that he will take his wife for check -up to the O.P. On being advised by familiar person, the complainant took his wife to the clinic of the O.P. Shivangi Hospital on 01.05.2012, where the O.P. got conducted sonography test and other pathological test of the wife of the complainant, in the sonography centre, situated in the premises of the O.P. In the sonography test report, the condition of the wife of the complainant was shown normal and there was no abnormality and condition was not critical. In the sonography test report, it is mentioned that that there is light swelling in the uterus, which was normally cured by the medicines. The reason of swelling in the uterus has been mentioned :-
(1) Infection
(2) Hormonal inbalance
(3) Irregular mensuration.
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The operation was not required to be conducted immediately but even then the O.P. with an intention to earn money told the complainant that operation of his wife is required to be conducted immediately, otherwise there would be problem for lifetime and pain will be continue and there is risk of life. The O.P. was required to give medicines to remove the swelling in the uterus but she told that the operation is necessary and asked the complainant to give consent for operation. The complainant gave his consent for operation of his wife. On 02.05.2012, on being asked by the O.P., the wife of the complainant was got admitted in Shivangi Hospital. On 03.05.2012 in morning, the O.P. took wife of the complainant to operation theatre for operation, from where she was brought outside at 10 AM. From coming outside of the operation theatre, the wife of the complainant suffered pain in her abdomen which was increased and unbearable due to which the patient was writhed. At 5.30 evening, the condition of the patient became uncontrollable, therefore, it was told that the patient be taken to Apollo Hospital and she was referred to Apollo Hospital. The O.P. told that she will bear all expenses of Apollo Hospital and the complainant will not require to pay the amount. On 03.05.2012 at 7.52 P.M., the complainant took his wife to Apollo Hospital, Bilaspur and she was got admitted for three days. On 06.05.2012 at 12.05 P.M. she died. Apollo Hospital, Bilaspur issued death certificate, in which cause of death is mentioned "Sepsis / Shock / Multiorgan Dysfunction with serve left ventriculas dysfunction." It shows that the surgery conducted by the O.P. on 05.05.2012 was not properly conducted and the O.P. is not competent to conduct such type of surgery. In the referral letter of the O.P., it is mentioned that after conducting surgery, the deceased Mamta Sharma became unconscious within an hour. It shows that the O.P. did not take proper care while conducting // 4 // surgery of the wife of the complainant. Due to medical negligence committed by the O.P., Smt. Mamta Sharma had died. The complainant suffered loss, as mentioned in para 20 of the complaint. Hence, the complainant filed the instant complaint and prayed for granting reliefs as mentioned in the relief clause of the complaint.
3. The O.P. filed her written statement and averred that on 01.05.2012, the complainant had not taken his wife in the O.P. hospital and the sonography was not carried out by the O.P. institution. According to the sonography report, the address of sonography centre is mentioned as F-12-27, Rajiv Plaza, In Front of District Hospital, whereas the hospital of the O.P. is situated at near Ajit Hotel, Telipara. In the sonography report there is bulky uterus and after investigation it is found that uterine prolapsed - stage III, Pelvic inflammatory disease and dysfunctional uterine bleeding, but the above diseases are not mentioned in the sonography report. The O.P. advised the complainant for surgery of his wife but she did not advised him that surgery is required to be conducted immediately, thereafter, the complainant returned back to his home. The complainant again came to O.P. hospital with his wife and his wife was got admitted in the O.P. hospital. If there was necessity of conducting operation, then the complainant would not returned back to his home. The deceased Smt. Mamta Shama was taken into operation theatre on 03.05.2012 and she was taken out at 10 A.M. from the operation theatre. In the death summary of Apollo Hospital, nothing is mentioned regarding wrongful treatment given by the O.P. to deceased Smt. Mamta Sharma. In the death summary, it is not made clear that the death of the patient is due to sepsis or shock or multiorgan disfunction or severe left // 5 // ventricular dysfunction. In this report it is not mentioned that the O.P. committed any medical negligence. In the sonography report, "referred by self is mentioned. On 01.05.2012, the pathology test was conducted by Dr. B.P. Singh, Meditech Diagnostic Centre and report was provided in which it is mentioned that Hemoglobin is 11.20%. The pathology report dated 03.05.2012 conducted by Apollo Hospital shows that the Hemoglobin was 12.3%. Both the reports were submitted by the complainant himself which shows that the deceased was not anemic and the operation of the deceased was not conducted while she was anemic, due to which blood was decreased, which did not become cause of her death. Before conducting operation of the deceased, the complainant and his relatives gave their consent and thereafter surgery was done. The surgery was carried out according to the medical jurisprudence. In this regard extensive guidelines were provided, which is mentioned in page 124 & 127 of The Lindes Operative Gynaecology 10th Edition - The Principles of Anatomy & Perioperative Considerations. The deceased Smt. Mamta Sharma delivered four children. In these circumstances the complaint of Prolapse Uterine is normal. In this situation , the treatment of Vaginal Hysterectomy is given in Standard Medical Reference Books. On 03.05.2012 at about 8.30 AM, the operation of the patient was started and at 10 AM she was taken out from the operation theatre, at that time all vital parameters were normal. At near about 11 AM all of sudden the patient suffered Fainting Attack and Bradycardia, therefore, immediately treatment was given to the deceased and her condition was improving. At that time there is no bleeding and abnormality relating to operation. At 3.45 P.M. again in the monitor installed, the Spo2 was fluctuating, therefore, the quantity of the quantity of the oxygen was increased, even then saturation was coming 80-85 and in the chest // 6 // examination light Basal Crepts were found. In this situation, immediately Dr. Harendra Shukla, MD (Medicine) was called, who advised to send the patient to Advance Centre. The relatives of the deceased told the O.P. that patient be referred to Apollo Hospital, therefore, the deceased Smt. Mamta Sharma, was referred by the O.P. to Apollo Hospital. The O.P. did not commit any medical negligence. The complaint is liable to be dismissed.
5. Learned District Forum, after having considered the material placed before it by the parties, has allowed the complaint and directed the O.P. to pay amounts to the complainant, as mentioned in para 1 of this order.
6. Miss Praveen Arora, learned counsel appearing for the appellant (O.P.) has argued that . after taking valid written consent from the patient and her husband, on 03.05.2012 at 8.30 A.M., the operation for removal of uterus (hysterectomy) was commenced. Dr. Praveen Goenka, MS, the O.P.'s husband was present during the operation. The Anesthetist Dr. Ashish Gupta administered anesthesia and after the operation the deceased was shifted in the ward at 10 A.M. in a normal condition. The monitors attached to her body showed that all the vital parameters viz the pulse, respiration, blood pressure, SpO2 were normal. At 11 A.M., she had a sudden fainting attack and her pulse rate became slow i.e. bradycardia. Immediately treatment was given and thereby pulse and B.P. became normal. At about 3.45 P.M. the monitor showed fluctuation in SpO2 which fell to 80-85% from 100% in spite of continuous administration of oxygen. On examination of chest basal crepts in lungs were detected. The O.P. immediately called the physician Dr. Harendra Shukla, MD, who after examining the patient, opined that she has developed sudden problem related to heart and advised to shift her // 7 // to a higher centre for critical care. She was immediately shifted in a well equipped medical ambulance to Apollo Hospital, Bilaspur and was escorted by the Surgeon Dr. Praveen Goenka, who explained to the physicians of the hospital the details about the history of illness, the surgery done and events that followed. The allegation of the complainant that operation was done by the O.P. without expertise is baseless. The O.P. is a qualified and experienced Obstetrician - Gynecologist having the Post Graduate qualification obtained from the College of Physicians and Surgeons, Mumbai in the year 2009 and is duly registered by the Chhattisgarh Medical Council. The O.P. examined and treated the patient with a high degree of expertise. Before operation, consent for surgery was duly obtained. The complainant and the patient both have signed the letter of consent written in Hindi, wherein they consented for operation of removal of uterus, but the District Forum has not carefully perused the written reply and the enclosed documents and has ignored the affidavits filed by the experts DR. Ashish Gupta, the Anesthetist and Dr. Praveen Goenka, the Surgeon. Even Dr. Rashmi Sharma, Dr. Sunil Kedia and DR. (Mrs.) Sudha Girish Pandey also gave their affidavits. Dr. Rashmi Rashmi Sharma, who is Gynecologist and experienced doctor in the field has opined that Prolapse Grade III is a troublesome condition and is accompanied by several complications. The decision to remove the uterus was correct. Biopsy has no place in the diagnosis of prolapsed. Dr. Rashmi Sharma further reported that the left ventricular failure has no relation to surgery. The O.P. has rendered her professional service with adequate knowledge, skill and care. Dr. (Mrs.) Sudha Girish Pandey, MD., Former Professor and Head of the Department of Obstetrics - Gynecology, L.R.A. Medical College, Raigarh (C.G.) hs also gave her opinion that the operation was carried out without any // 8 // complication. Dr. Sunil Kedia, MS, FAIS, FIAGES, the Senior Surgeon of Apollo Hospital has opined that there was no surgical problem in the patient, there was no infection at the surgical site and on sonography there was no collection of blood in the abdomen. The opinion of above doctors are highly significant as they are not contradictory. The complainant has not filed any cogent evidence to prove that the O.P. has committed any medical negligence. The District Forum has drawn its inference without obtaining the opinion of medical experts, whereas three senior experts have uniformly opined that decision to remove uterus was correct and with proper consent, there was no complication as result of surgery, which arose later were not related to surgery. Hence, the impugned order passed by the District Forum, is erroneous and is not sustainable in the eye of law and the same is liable to be set aside. The appeal filed by the appellant (O.P.) may be allowed.
7. Shri Shaukat Ali, learned counsel appearing for the respondent (complainant) has argued that the complainant was married with Smt. Mamta Sharma before near about 16 years. After marriage, the complainant had 4 children namely Gaurav Sharma, aged 14 years, Saurabh Sharma aged 12 years, Tarun Sharma aged 7 years and Tripti Sharma 5 years. On 20.04.2015, the wife of the complainant Smt. Mamta Sharma had pain in abdomen for which she was taken to Dr. Sharma Hospital, Bus Stand Road, Opposite Telephone Exchange, Bilaspur, where Dr. Sangeeta Sharma gave some medicines and treated her. On 01.05.2012, she again suffered light pain in her abdomen, and it was decided to take her to a doctor. The familiar person of the complainant told that the O.P. is a good doctor, and advised the complainant that he will take his wife for check -up // 9 // to the O.P. On being advised by familiar person, the complainant took his wife to the clinic of the O.P. Shivangi Hospital on 01.05.2012, where the O.P. got conducted sonography test and other pathological test of the wife of the complainant, in the sonography centre, situated in the premises of the O.P. In the sonography test report, the condition of the wife of the complainant was shown normal and there was no abnormality and condition was not critical. In the sonography test report, it is mentioned that that there is light swelling in the uterus, which was normally cured by the medicines. The reason of swelling in the uterus has been mentioned :-
(1) Infection
(2) Hormonal inbalance
(3) Irregular mensuration.
The operation was not required to be conducted immediately but even then the O.P. with an intention to earn money told the complainant that operation of his wife is required to be conducted immediately, otherwise there would be problem for lifetime and pain will be continue and there is risk of life. The O.P. was required to give medicines to remove the swelling in the uterus but she told that the operation is necessary and asked the complainant to give consent for operation. The complainant gave his consent for operation of his wife. On 02.05.2012, on being asked by the O.P., the wife of the complainant was got admitted in Shivangi Hospital. On 03.05.2012 in morning, the O.P. took wife of the complainant to operation theatre for operation, from where she was brought outside at 10 AM. From coming outside of the operation theatre, the wife of the complainant suffered pain in her abdomen which was increased and unbearable due to which the patient was writhed. At 5.30 evening, the condition of the // 10 // patient became uncontrollable, therefore, it was told that the patient be taken to Apollo Hospital and she was referred to Apollo Hospital. The O.P. told that she will bear all expenses of Apollo Hospital and the complainant will not require to pay the amount. On 03.05.2012 at 7.52 P.M., the complainant took his wife to Apollo Hospital, Bilaspur and she was got admitted for three days. On 06.05.2012 at 12.05 P.M. she died. Apollo Hospital, Bilaspur issued death certificate, in which cause of death is mentioned "Sepsis / Shock / Multiorgan Dysfunction with serve left ventriculas dysfunction." It shows that the surgery conducted by the O.P. on 05.05.2012 was not properly conducted and the O.P. is not competent to conduct such type of surgery. In the referral letter of the O.P., it is mentioned that after conducting surgery, the deceased Mamta Sharma became unconscious within an hour. It shows that the O.P. did not take proper care while conducting surgery of the wife of the complainant. Due to medical negligence committed by the O.P., Smt. Mamta Sharma had died. The impugned order passed by the District Forum, is just and proper and does not call for any interference by this Commission. The appeal filed by the O.P. is liable to be dismissed.
6. In the instant case, the appellant (O.P.) has filed an application under Order 41 Rule 27 CPC for taking additional evidence on record at appellate stage along with Certificate dated 14.07.2017 given by Dr. Sunil Kumar Kedia, Certificate dated 12.07.2017 given by Dr. Rashmi Sharma, Certificate dated 18.07.2017 given by Dr. Sudha Girish Pandey, Admission Sheet of Shivangi Hospital, Bilaspur and other documents.
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7. We have heard the counsel for both the parties on the application filed by the appellant (O.P.) under Order 41 Rule 27 CPC.
8. The appellant (O.P.) sought permission to file above documents at the appellate stage as additional evidence.
9. Looking to the facts and circumstances of the case , we find that the above documents which are sought to be filed by the appellant (O.P.) at the appellate stage as additional evidence are essential for proper adjudication of the case and will also helpful to the parties and will not cause any prejudice to the respondent (complainant). Therefore, it is just and proper to allow the application filed by the appellant (O.P.) under Order 41 Rule 27 CPC subject to payment of cost.
10 Therefore, we allow the application filed by the appellant (O.P.) under Order 41 Rule 27 CPC, subject to payment of cost of Rs.10,000/- (Rupees Ten Thousand) and the above documents are taken on record as additional evidence at the appellate stage.
11. The appellant (O.P.) has filed Certificate dated 14.07.2017 given by Dr. Sunil Kumar Kedia, Certificate dated 12.07.2017 given by Dr. Rashmi Sharma, Certificate dated 18.07.2017 given by Dr. Sudha Girish Pandey, Admission Sheet of Shivangi Hospital, Bilaspur and other documents and the above documents have been taken on record as additional evidence, therefore, it is essential to remit the case back to the District Forum without going on merits of the case, for proper adjudication of the case on the basis of above documents. It is also essential to provide an opportunity to the respondent (complainant) to obtain // 12 // expert opinion from any expert in rebuttal of the documents filed by the appellant (O.P.).
12. Therefore, the appeal filed by the appellant (O.P.) is allowed and the impugned order dated 22.06.2017, passed by the District Forum, is set aside. The matter is remitted back to the District Forum with a direction that the District Forum will take the documents on record, which have been filed by the appellant (O.P.) at the appellate stage, and if the respondent (complainant) wishes to file expert opinion or any documents in rebuttal of the documents, which have been filed by the appellant (O.P.) at the appellate stage as additional evidence, then the District Forum will provide such opportunity to the respondent (complainant) and thereafter by providing opportunity of hearing to the parties, the District Forum, will decide the matter afresh on its own merit. Parties are directed to appear before the District Forum, Bilaspur (C.G.) on 27.02.2018 The photocopies of the above documents, be kept in the record of the appeal and the original documents, which have been filed by the appellant (O.P.) before us at the appellate stage, be sent forthwith to the District Forum, Bilaspur (C.G.) along with record of the case.
(Justice R.S. Sharma) (D.K. Poddar) (Narendra Gupta)
President Member Member
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