State Consumer Disputes Redressal Commission
Ankur Malhotra vs Dr. Kanwaljit Singh Dhillon on 17 September, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T. CHANDIGARH
[Additional Bench]
==================
Appeal No. : A/42/2024
Date of Institution : 24/01/2024
D a t e o f D ec i s i o n : 17/09/2024
Ankur Malhotra son of Sh.Anil Kumar Malhotra, presently
residing at House No. N-71, Tower-N, Wellington Heights
Extension 2, TDI City, Sector 117, Mohali (Earlier
Resident of House No.319, 2 n d Floor, Sector 40-A,
Chandigarh).
....Appellant
Vs .
1. Dr. Kanwarjit Singh Dhillon, Max Super Speciality
Hospital, Near Civil Hospital, Phase-6, Mohali,
Punjab.
2. Max Super Speciality Hospital, Near Civil Hospital,
Sector 6, Mohali, Punjab, through its Chairman/
Managing Director.
.... Responde nts
BEFORE: MRS. PADMA PANDEY PRESIDING MEMBER
PREETINDER SINGH MEMBER PRESENT : Sh. Vaneesh Khanna, Advocate for the Appellant along with Sh. Anukur Malhotra, Appellant in person. Sh. Devinder Kumar, Advocate for Respondent No.1 along with Dr. Kanwarjit Singh Dhillon, Respondent No.1 in person. Sh. Munish Kapila, Advocate for Respondent No.2. PER PADMA PANDEY, PRESIDING MEMBER
1. The present appeal has been filed by the Appellant impugning the order dated 06.12.2023 vide which the Learned District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (for brevity hereinafter to be referred as "the Ld. District Commission"), dismissed -2- the Consumer Complaint bearing no.CC/672/2020, in the following terms:-
"16. Taking into consideration all the facts and circumstances of the case, we have no hesitation to hold that the Complainant has failed to prove that there has been any deficiency in service on the part of the OPs. As such, the Complaint is devoid of any merit and the same is hereby dismissed, leaving the parties to bear their own costs.
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17. The pending application(s), if any, stands disposed of accordingly."
2. For the convenience, the parties are being referred to, in the instant Appeal, as position held in Consumer Complaint before the Ld. District Commission.
3. Before the Ld. District Commission, it was the case of the Complainant that in month of Feb. 2018, he was having constant pain and heaviness in the lower abdominal area, for which he visited the Opposite Party No.2 Hospital (Max Super Speciality Hospital), where he was checked & medically examined by Opposite Party No.1 (Dr. Kanwarjit Singh Dhillon). After various Tests, ECG, X-Ray and Ultrasound Report, the complainant was diagnosed as Bilateral Inguinal Hernia in the right side & minimum in the left side and advised to undergo for surgery immediately. The Complainant got admitted in the Hospital on 03.03.2018, where a Laparoscopy Surgery of Inguinal Hernia by placing & fixing the B/L 3D BARD MESH in the body was performed by OP No.1 on -3- 03.03.2018. The Complainant remained hospitalized from 03.03.2018 to 04.03.2018. After discharge from the Hospital, the Complainant followed up the instructions of Dr. Kanwarjit Singh Dhillon as advised from time to time and strictly adhered to all the instructions of the Doctors and took the medicine timely as per the advice. However, he started facing Constipation, Burning Micturation and Pain in Pelvic Area, for which he time & again visited to the Opposite Party No.2 Hospital, but to no effect. Instead of getting relief from the problems, when the Complainant started facing another problem of pain in bowel area ne ar Mesh implant, discomfort in lower abdomen and incomplete sense of Evacuation, he again asked the Doctor of the Opposite Party No.2, but the Doctor of the Opposite Party No.2 had not taken it seriously. It has been averred that finally, the complainant consulted Dr. Desarda Mohan, MS; FICS (USA); FICA (USA), Chief of Hernia Center, Poona Hospital & Research Centre, Pune Maharashtra, a promine nt Doctor in India specially for Hernia Surgery, who opined that the problems of Constipation, Pain & Burning Micturation, discomfort in lower abdomen and Incomplete sense of Evacuation was due to placing & fixing the MESH in the body of the Complainant while surgery of Inguinal Hernia. He further opined that to get rid of all these problems, the only way was to undergo for surgery and to remove the same. The -4- complainant also consulted online with Dr. Kevin C. Petersen, MD, Las Vegas, USA and also with Dr.R.Padma Kumar, Sr. Consultant & HOD-General & Laparoscopic Surgery, VPS Lakeshore Hospital, Kochi, Kerala. It was alleged that now from the last 6-7 months, the complainant was also facing pain and inability to carry out and continue with his routine activities i.e. walking, sitting and keeping himself in one posture for more than 15 minutes. According to the Complainant, the complications caused by Mesh affixed while performing the Hernia Surgery by the Opposite Parties, had directly affected the performance and loss to the earnings of the Complainant. It was further alleged that the Mesh is a foreign object, a simple piece of cloth prepared from the polyester, polypropylene or similar synthetic threads, which has already been recalled by U.S. Food and Drug Administration since March 2008-09. Its use in hernia repairs is known to cause all sorts of complications like Constipation, Pain & Burning Micturation, discomfort in lower abdomen and incomplete sense of Evacuation to the Complainant. The Opposite Parties must be aware of it, but they had failed to perform their duties towards the Complainant. Had the Doctors disclosed its complications, the Complainant would not have gone for the Hernia Surgery with Mesh repair. It was also alleged that the acts of the Opposite Parties were highly unethical as well as -5- against the Medical Protocol and rather amounts to medical negligence. The Complainant had suffered monetary loss, mental and physical harassment for no fault on his part. Hence, the aforesaid Consumer Complaint was filed before the Ld. District Commission, alleging deficiency in service and unfair trade practice on the part of the Opposite Parties.
4. In the reply filed before the Ld. District Commission, while admitting the factual matrix of the case, Opposite Parties pleaded there was no case of medical negligence, mal practice, as alleged by the complainant; the allegations leveled in the complaint were frivolous, baseless and formulated on wrong and misleading facts; the complainant failed to spell out anything that could be termed as negligence or malpractice on part of the Opposite Parties; as per the settled law, as well the settled medical norms, the action of the Opposite Parties in treating the complainant to the best of their ability and skills with best doctors and while keeping in view the standard medical procedure and the condition and safety of the complainant, the Opposite Parties cannot be held liable for deficiency in service or for medical negligence. It was admitted that Dr. Dhillon was working with the Opposite Party No.2 - Max Hospital, and no longer served the hospital after 10.07.2019. It was -6- asserted that the complainant was treated as per the protocol set in the International Guidelines for Hernia Repair through 'Laparoscopy with Mesh Repair'. The complainant was diagnosed with CPPS (Chronic Pelvic Pain Syndrome) by two renowned Super Specialists, firstly, on 29.10.2018 by Urologist Dr. R.S. Rai and then on 31.01.2019 by Urologist Dr. Abhay Kalra who were both experts at Hernia Surgery too. Further, the CPPS was a disease which existed independently and had no connection with hernia or Mesh or post surgical complications of a Laparoscopic Surgery. Instead of taking treatment of CPPS, the complainant had been taking online consultations with Surgeons, who have not examined him physically. It was pleaded that before visiting the Opposite Parties, the complainant had consultations with another Urologist Dr. Karun Singla, apparently for his urinary problems and undergone various tests dated 23.02.2018 whereby he was diagnosed with 'INGUINAL HERNIA' on both sides. The complainant sought consultation with Opposite Party No.1 for the first time on 24.02.2018 with Pre-diagnosis of Bilateral INGUINAL HERNIA' as per his Ultrasound Report dated 23.02.2018. However, he intentionally did not attach his Max Super Specialty Hospital OPD prescription slip dated 24.02.2013, which slip clearly showed his previous histor y of consultations with a Urologist and Tests got done on -7- his advice for his micturition problems even before consulting Opposite Party No.1. Since the only treatment of INGUINAL HERNIA was surgery, hence Opposite Party No.1 advised 'Laparoscopic Surgery with Mesh to the complainant, which surgery is preferred for "minimal incision, faster recovery and less pain". The complainant was categorically explained about his diagnosis and the treatment. The five risks of the procedure i.e. bleeding, infections, visceral injury, post operation pain and recurrence were duly brought to the knowledge of the complainant and his family members. It was asserted that when the complainant visited after more than 3 months of the surgery and again after 4 ½ months, on checking no complication was found on physical examination and all tests advised by Opposite Party No.1 for blood, urine and ultrasound were normal. It was also asserted that the medical prescription Annexure C-31 clearly shows that the complainant had no pain when he was examined by Dr. N.M. Gupta, Former Professor and Head of the Department of Surgery, PGI. Denying all other allegations and pleading no medical negligence, deficiency in service or unfair trade practice on their part, the Opposite Parties prayed for dismissal of the complaint.
5. On appraisal of the pleadings of the parties and the evidence adduced on the record, Ld. District -8- Commission dismissed the Complaint of the Complainant as noticed in the opening para of this order.
6. Aggrieved against the aforesaid order passed by the Ld. District Commission, the instant Appeal has been filed by the Appellant/Complainant.
7. We have heard the Learned Counsel for the Parties and have gone through the evidence and record of the case with utmost care.
8. The core question that falls for consideration before us is as to whether the Ld. District Commission has rightly passed the impugned order by appreciating the entire material placed before it.
9. After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be dismissed for the reasons to be recorded hereinafter.
10. It is the case of the Appellant/Complainant that the Ld. District Commission while passing the impugned order has failed to appreciate the documentary evidence available on record, which resulted into perverse finding. Also, the impugned order was passed without taking into consideration the facts of the case and without appreciating the correct legal position, which resulted into -9- gross miscarriage of justice and thus deserves to be set aside. The learned counsel further argued on the similar lines and prayed for acceptance of the present appeal.
11. Conversely, it has been contended on behalf of the Respondent/Opposite Parties that the order passed by the Ld. District Commission is quite just & right and does not call for any interference. The detailed finding of facts has already been recorded by the District Commission while rejecting the stand of the Appellant/Complainant. The learned counsel further argued on the similar lines as stated in the complaint filed before the Ld. District Commission and prayed for dismissal of the present appeal.
12. The main thread which runs through the present controversy is whether there was negligence on the part of the Respondent No.1, if he has performed his duties to the best of his ability, with a reasonable degree of skill and with due care and caution.
13. Learned Counsel for Respondent No.1 argued that a doctor cannot be held negligent simply because something goes wrong. It is only when the doctor falls below the standard of reasonable competent practitione r, so much so that their conduct is inexcusable. Since in the present case, there was no evidence on record in respect -10- of the above, the appeal is liable to be dismissed with cost.
14. The Ld. District Commission in Para 11 of the impugned order after going through the material available on file has recorded a finding that per guidelines for hernia management (Annexure R-1/4), mesh repair became the best practices available and the same was used for the treatment of the Complainant and he was operated as per the international guidelines issued by the Laparoscopic Mesh Hernia Repair. The Ld. District Commission while placing reliance on Dr. Harish Kumar Khurana Vs. Joginder Singh & Ors., C.A. No. 7380 of 2009 decided on 07.09.2021, Dr.Laxman Balkrishna Joshi vs. Dr.Trimbark Babu Godbole and Anr., AIR 1969 SC 128 and A.S.Mittal v. State of U.P., AIR 1989 SC 1570 held that the Respondents attempted to treat the Complainant to the best of their ability and they did not fall in their duties to take due care of the Appellant/ Complainant.
15. It is well settled legal position in medical negligence law that only expectation from a treating doctor is that whether he has discharged his duty of reasonable care and skill and treated the patient as per standard medical protocol and thereafter, irrespective of the consequence of such treatments the courts cannot hold -11- the doctor guilty of any medical negligence solely on the basis of the outcome of such treatment. Record shows, the Respondent No.1 had given treatment to the Complainant with all responsible skills and competence. The Complainant. In these conditions, no negligence can be attributed on the part of the Respondents, unless certain practice or procedure by the doctor is proved by the Complainant which gives rise to an interpretation that the doctor was negligent in treating the patient.
16. In Devarakonda Surya Shesh Mani and Ors. Vs. Care Hospital, Institute of Medical Sciences and Ors., IV (2022) CPJ 7 (SC), the Hon'ble Supreme Court held that the mere allegations of medical negligence are not sufficient but the Complainant should prove it by positive evidence which leads to conclusion that the doctor failed in his duty towards the patient in a case of medical negligence.
17. Relying upon the aforesaid judgment of the Hon'ble Apex Court, we are of the view that the Appellant/ Complainant has not given ample evidence from which it may be concluded that any medical negligence has been committed by the Respondents on the treatment of the Appellant/Complainant. During the course of arguments, the Appellant produced on record a medical literature in support of his claim, but in the absence of any expert -12- report by any doctor in line with the said medical literature, to our mind it would be hypothetical assumption to form a view of lack of due medical care or that the Respondents were negligent to perform their duties or any treatment.
18. Before coming to a conclusion, it is necessary to mention here that the skill of a medical practitioner differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. The Hon'ble Apex Court in catena of cases has held that the Courts should be slow in attributing negligence on the part of a doctor, if he has performed his duties to the best of his ability and with due care and caution. The negligence must be established and not presumed. A bonafide mistake is excusable, but a mistake which would tantamount to negligence cannot be pardoned. If it is an error that such a man, acting with ordinary care might have made, then it is not negligence. Balom's test, which is recognized in various pronouncements of Hon'ble Supreme Court, makes it clear that the medical practitioner must do his take with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence -13- judged in the light of the particular circumstances of each case is what the law requires. However, gross medical mistake will always result in finding of negligence and in some situations principle of Res ipsa loquitur can be applied. In Bolam Vs. Friern Hospital Management Committee, (1957) 1 WLR 582, it was held that a doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body or medical men skilled in that particular field.
19. In Martin F.D'Souza Vs. Mohd. Ishafq, I (2009) CPJ 32 (SC), the Hon'ble Supreme Court in Para 17 has held that: -
"Medical practitio ner not l iable f or negligence simply bec ause things wen t wrong f rom mischance/ misadventure through error of judgment and the medical prac titio ner would be liable only where his conduc t f ell belo w th at of standards of reasonably compe ten t practitioner in his f ield and simply because patient not f avourable responded to the treatment given by doctor or surgery f ailed, doc tor c annot be held straightaway liable f or medic al negligence by applying doctrine of Res ipsa loqu itur."
20. Further, in Jacob Mathew Vs. State of Punjab & Anr., III (005) CPJ 9 (SC) 122, the Hon'ble Supreme Court realizing that doctors have to be protected from frivolous Complaints of medical negligence, laid down certain rules in Para 49 of its judgment:-
"49. (3) A prof ession al may be held liable f or negl igence on one of the two f indings; either he was not possessed of the requ isite skill wh ich he prof essed to have possessed, or, he did no t -14- exercise, with reason able co mpe tence in the given case, the skill wh ich he did possess. T he standard to be applied f or judging, whether the person charged has been negligent or not, would be that of an ordinary comp eten t person exercising ordinar y skill in that prof ession. It is not possible f or every prof ession al to possess the highest level of expertise or skills in th at branch which he practices. A highly skilled prof essional may be possessed of better qual ities, but th at cannot be made the basis or the yardstick f or judging the perf ormance of the prof essional proceeded against on indic tment of negl igence."
21. In Dr. (Mrs.) Chanda Rani Akhouri and Others Vs. Dr. M.A. Methusethupathi & Others, Civil Appeal No. 6507 of 2009 decided on 0.04.2022, the Hon'ble Supreme Court observed as under: -
"27. It clearly emerges f rom the exposition of law that a medical pr actitioner is not to be hel d liable simply because th ings wen t wrong f rom mischance or misadventure or through an error of judgment in choos ing one reasonable course of treatment in pref erence to another. In th e prac tice of medicine, there could be varying approaches of treatmen t. T here could be a genuine dif f erence of opinion. However, wh ile adopting a course of treatmen t, the duty c ast upon the medic al prac titioner is that he must ensure that the medic al protocol being f ollo wed by him is to the best of his skill and with co mpetence at his co mmand. At the given time, medic al pr actitioner would be l iable only where his conduct f ell belo w th at of the standards of a reasonably competent pr actitioner in his f ield."
22. In Ms. Ins. Malhotra Vs. Dr. A. Kriplani & Others, II (2009) PJ 18 (SC), the Hon'ble Apex Court laid down principle for assessing negligence of a doctor. Relevant part of the judgment is extracted below:- -15-
"Negligence in the context of the medical prof ession necessar ily calls f or a treatment with a dif f erence. To inf er rashness or negl igence on the par t of a prof essional, in p artic ular a doctor, additional considerations apply. A case of occupational negligence is dif f erent f rom one of prof essional negl igence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medic al prof essional. So long as a doctor f ollows a prac tice acceptable to the medic al prof ession of that day, he cannot be held liable f or negl igence merely because a better al ternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to f ollo w or resort to that prac tice or procedure wh ic h the accused f ollo wed."
23. In "Kusum Sharma Vs. Batra Hospital and Medical Research Centre", 2010 (3) SCC 480, the Hon'ble Supreme Court held as under: -
"..........As long as the doc tors have perf ormed their duties and exercised an ordinary degree of prof essional skill and competence, they cannot be held guil ty of medic al negligence."
24. In "V. Kishan Rao Vs. Nikhil Super Speciality Hospital", (2010) 5 SCC 513, , the Hon'ble Supreme Court held as under: -
"47. In a case where negl igence is evident, the principle of Res ipsa loquitur operates and the Co mplainant does not have to prove anyth ing as the thing (res) proves itself . In such a case it is f or the Respondent to prove that he h as taken c are and done his du ty to repel the charge of negligence."
25. In the instant case, we do not find any concrete evidence available on record from which we can come to a -16- conclusion that any medical negligence has been committed by the Respondents/Opposite Parties while treating the Appellant/Complainant in the hospital. Whatever the treatment was provided to the Appellant/Complainant the same was as per the line of treatment prescribed under the medical norms. Thus, to our mind, no case is therefore made for any interference in the well reasoned findings recorded by the Ld. Lower Commission.
26. No other point was urged, by the Learned Counsel for the parties.
27. It is demonstrable from a reading of the impugned Order of the Ld. District Commission that it is certainly not an order passed without reasons or without applying the judicious mind. The facts and circumstances of the case have been gone into, weighed and considered, and due analysis of the same has been made. It also does not appear to be an order passed without taking into account the available evidence.
28. In the wake of the position, as sketched out above, we are dissuaded to interfere with the impugned order rendered by the Ld. District Commission. The appeal being bereft of merit is accordingly dismissed and the order of the Ld. District Commission is upheld. -17-
29. There shall be no order as to costs. All the pending applications, if any, also stand disposed of accordingly.
30. Certified Copies of this order be sent to the parties, free of charge.
31. The file be consigned to Record Room, after completion.
Pronounced 17 t h Sept. , 2024 Sd/-
(PADMA PANDEY) PRESIDING MEMBER Sd/-
(PREETINDER SINGH) MEMBER "Dutt"