State Consumer Disputes Redressal Commission
Abdul Khalique vs Iqbal Ahmed on 5 July, 2024
FA NO.321/2012 DR. ABDUL KHALIQUE & ANR VS IQBAL AHMED & ANR D.O.D:05.07.2024
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 12.04.2012
Date of Hearing: 08.11.2023
Date of Decision: 05.07.2024
FIRST APPEAL NO.- 321/2012
IN THE MATTER OF
1. DR. ABDUL KHALIQUE
SAMRA HOSPITAL PVT. LTD.
C- 3/52A -53A
YAMUNA VIHAR,
DELHI-110053.
2. THE MANAGER
SAMRA HOSPITAL PVT. LTD.
C- 3/52A -53A
YAMUNA VIHAR,
DELHI-110053.
(Through: Mr. K.G. Sharma, Advocate)
...Appellant
VERSUS
1. SH. IQBAL AHMED
S/O SH. NOOR AHMED
R/O 2, KOTLA LANE
NEAR BAL BHAWAN
NEW DELHI.
(Through: Mr. Anwar Masood, Advocate)
....Respondent
2. THE CHIEF MEDICAL OFFICER
LOK NAYAK JAI PRAKASH HOSPITAL
NEW DELHI
....Performa Respondent
DISMISSED PAGE 1 OF 11
FA NO.321/2012 DR. ABDUL KHALIQUE & ANR VS IQBAL AHMED & ANR D.O.D:05.07.2024
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. K.G. Sharma, counsel for the Appellant
Mr. Anwar Masood along with Mr. Suroosh Anwar,
counsel for the Respondent No. 1.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are:
"This complaint has been filed with the allegation that the wife of the complainant Smt. Shakila aged about 25 years was suffering from abdomen pain and she was taken to respondent No. 1 at Samra Hospital Pvt. Ltd. She was advised hospitalization for a minor operation of uterus. She was admitted on 19/07/2009 and operated on 21.07.2009. It is alleged that the operation was premature. The condition of the patient deteriorated day by day. She was bleeding and pus was coming continuously from the spot of operation. There was no Gynecologist in the said hospital and respondent No. 1 was not authorized to operate the wife of the complainant. He operated her for monetary benefit by charging Rs. 40,000/- on medicine, Rs. 22,000/ on blood, Rs. 65,800/- as hospital charges and other amounts etc. She remain hospitalized up to 01/08/2009. She was not in normal condition and suffering from a number of diseases due to the dereliction of duties and negligence on the part of the respondent No. 1. She was shifted to respondent No. 3 on 05/08/2009 and there it was said that the respondent No. 1 has removed the uterus of the complainant's wife. This was never told by respondent No. 1 that uterus has been removed. She was admitted in the Intensive Care Unit of respondent No. 3 and she expired on 02/09/2009. It has been alleged that at the time of operation the wife of the complainant was DISMISSED PAGE 2 OF 11 FA NO.321/2012 DR. ABDUL KHALIQUE & ANR VS IQBAL AHMED & ANR D.O.D:05.07.2024 not in a position to be operated upon and the respondent No. 1 who is not authorized to perform the operation has undertook to operate the wife of the complainant simply out of greed. Because of the respondent No. 1 the child have become orphan their education has been effected and the complainant has been deprived of his beloved wife. A sum of Rs. 10,00,000/- as compensation has been claimed.
Respondent No. 1 and 2 filed the written statements alleging there in that the complainant has not filed the expert medical opinion before the filing the complaint as has been held by Hon'ble Apex Court in Martin F. D'Souza, Doctor Appellant Vs. Mohd. Ishfaq. This is also alleged that the treatment provided to the complainant's wife was best according to medical ethics and norms. This complaint is a clear case of abuse of process of law. Non-joinder of United India Insurance Company has been pleaded. It is also alleged that the treating doctor cannot avoid any inherent complications which are basic ingredients either of disease pathology itself or treatment procedure. It is not alleged that the treating doctor have deviated from the normal prescribed line of treatment. The patient was properly examined, investigated, diagnosed and treated by respondent No. 1. The uterus of the patient was anteverted in position and in mid line ze was enlarged. Uterine cavity is empty and distorted. There was evidence of multiple intramural/ Subserous fibroids (maximum of 8 cm) and it was accordingly advised transverse abdominal hysterectomy which is the standard procedure. After taking the consent and telling the consequences of the operation she was operated on 21/07/2009. Proper investigations were conducted, spinal anesthesia was given and she remain in hospital ICU as well as in the private room. The respondent No. 1 shifted her to LNJP Hospital, New Delhi on 05/08/2009. Rest of the allegations have been denied.
Both the parties have filed on record the affidavit and documents."
DISMISSED PAGE 3 OF 11 FA NO.321/2012 DR. ABDUL KHALIQUE & ANR VS IQBAL AHMED & ANR D.O.D:05.07.2024
2. The District Commission after taking into consideration the material on record, passed the following order dated 16.11.2011:
"I have gone through the entire record and heard the Ld. Counsels for the parties at length. This is not disputed that Smt. Shakila was taken to the respondent No. 1 for lower abdomen pain and was operated upon 21/07/2009. It is also not denied that Smt. Shakila died at the LNJP Hospital on 02/09/2009. The main important question which has been raised by the Ld. Counsel for the complainant is that Dr. Abdul Khalique, the Surgeon at Samra Hospital was not competent to operate the lady suffering from uterine fibroid. It is admitted by Dr. Abdul Khalique in his written statement that he has done MBBS Degree in 1983, MS-General Surgery from SP Medical College, Bikaner, Rajasthan. It is no where mentioned in the written statement or otherwise that this particular operation was conducted alongwith him by any Gynecologist and Obstetrician. The name of such Gynecologist and Obstetrician Surgeon has not been disclosed in the written statement or in the affidavit filed by the respondent. Question raised as to how the General Surgeon can perform the surgery of the uterus which falls within domain of the Gynecologist and Obstetrician.. If a General Surgeon has ventured into the field of which he is not an expert will, it amount to negligence on the part of the treating surgeon? The Ld. Counsel for the respondent argued that post - operative consent given by the attendants of the patient absolve him from any liability on account of his performing the operation of the patient and his competence cannot be challenged by the complainant at this stage.
The Ld. Counsel for the complainant submitted that the consent form has not been submitted by the respondent on record. The documents filed by the complainant which include the discharge ticket date 05/08/2009 shows no such evidence that the consent was given by the complainant or any of her family member for the operation of Hysterectomy. This is true that on 9/07/2009 Whole Abdomen Ultrasound was done at Dr. DISMISSED PAGE 4 OF 11 FA NO.321/2012 DR. ABDUL KHALIQUE & ANR VS IQBAL AHMED & ANR D.O.D:05.07.2024 P.D. Gupta Mediscan Centre (P) Ltd, which shows that prior to the operation the kidneys are normal in site, size and shape and there was only mild hydronephrosis in one of the kidney and the doctor has suggested presence of the uterine fibroids. Blood tests were also done which shows prosthetic mitral valve with mild perivalvular regurgitation. ECHO was also done on 20/07/2009 and Cardiac evaluation was done. it shows that the mitral valve was replaced on 29/05/2008. This can be safely inferred from the documents that her heart condition was not perfect, in sound condition and still she was operated upon 21/07/09. It was obligatory in such circumstances for respondent No. 1 to have taken clearance from a Cardiologist and Physician. No document have been filed from the side of the respondent No. 1 & II that any such advise or clearance was taken by doctor before performing the operation on 21/07/2009. This is an admitted fact to the respondent that post operation, patient was loosing blood more than normal and drain were put to stop the flow of blood and blood transfusion was done. It has been placed on record by the complainant wholesome evidence in support of his contention that right after the operation there was continuous flow of blood and on 22/07/2009 blood was taken from the Lions Blood Bank and again the requisition was issued by the Samra Hospital for B+ve blood for 2 units on 27/07/2009. The patient attendant Sh. Shamsheer Ali the brother of the diseased gave his consent for transfusion of the blood on 22/07/2009. All the records placed on this file shows that condition of the patient was continuously getting deteriorated despite number of blood transfusions. It has been admitted by the respondent that the pus was also coming from the spot of the operation. When this patient was shifted to LNJP Hospital it has been specifically noted by the doctors that there is a discharge from the draining side and pus and blood is discharging. The record of the LNJP hospital also shows that she suffered from excessive blood during surgery and 8 units of blood were transfused and she was diagnosed as a case of septicemia and multi organ failure. The entire record of the LNJP Hospital shows that they tried their best to DISMISSED PAGE 5 OF 11 FA NO.321/2012 DR. ABDUL KHALIQUE & ANR VS IQBAL AHMED & ANR D.O.D:05.07.2024 revive the patient and it is a case of inherent failure of operation when the patient could not be revived and she dies as a result there off..
This is nowhere proved from the pleadings or evidence placed on record by the respondent that from 21/04/2009 to 05/08/2009 Dr. Abdul Khalique have requisition any Gynecologist or Obstetrician to examine the patient or have taken the steps for blocking the site of leakage of the blood. Cumulatively his action was the ultimate reseason of Smt. Shakila's death. It is height of immaturity and mis adventurism on the part of the respondent that he cared to embark upon a field of which he was not an expert and was not authorized to do the surgery. Gynecological Surgery undertaken by him resulted in the death of a young lady. Depriving the children of motherly love and affection and loss of companionship to the husband. Dr. Abdul Khalique, could not place any literature of medicine, which could prove that such operation can be performed by a general surgeon.
In view of the above the respondent No. 1 has been highly negligent in performing the surgery of Smt. Shakila which has resulted into her death. We agreed with the submission of the complainant that the monitary compensation cannot restore to the child the guidance they were getting from their mother; the affection of a mother cannot be evaluated in terms of money. They have been deprived of the guidance to which they need most in the formative years of their life and education. The complainant has demanded only Rs. 10,00,000/- as compensation which we feel is not enough in the circumstances of this case. Any how we restrict ourselves in grant of compensation to the amount prayed by the complainant. The complainant is entitled for a sum of Rs. 10,00,000/- as compensation from the respondent No. 1 & II together with cost of this litigation which is fixed as Rs. 5,000/-.
If this compensation is not paid within 30 days from the date of the judgement then the complainant shall be DISMISSED PAGE 6 OF 11 FA NO.321/2012 DR. ABDUL KHALIQUE & ANR VS IQBAL AHMED & ANR D.O.D:05.07.2024 entitled for interest over this amount @ 9% p.a till the date of its realization. So far as the plea regarding the payment by the insurance company is concerned we would like to say that that complainant is not in privy to the contract of insurance between the respondent and the insurance company. The respondent may take appropriate action for the reimbursement of the claim in accordance with law as applicable"
3. Aggrieved by the aforesaid decision of the District Commission, the Appellant has preferred the present Appeal on the following grounds reproduced hereunder as follows:
"A) FOR THAT the Impugned order dated 16.11.2011 suffers from serious errors of law and facts and has been passed in the absence of due and proper consideration of the evidence on record of the case. As such, the impugned order is liable to be set aside.
B) That order dated 16.11.2011 of the District Forum awarding compensation in favour of the respondent is legally untenable and against settled principles of law.
C) That non consideration by the District Forum of the pleadings and documents filed by the appellant which clearly showed that there was no negligence on the part of the appellant, amounts to serious error of law and Illegal exercise of discretion.
D) That the impugned judgment/final order dated 16.11.2011 is bad in law as no reason much less cogent reason has been assigned by the District Forum to award compensation in favour of respondents.
DISMISSED PAGE 7 OF 11 FA NO.321/2012 DR. ABDUL KHALIQUE & ANR VS IQBAL AHMED & ANR D.O.D:05.07.2024
E) That the impugned judgment/final dated 16.11.2011 of the District Forum is unreasonable, not sustainable and liable to be set aside."
4. A bare perusal of the contents of the Appeal and the aforementioned grounds divulges that the Appellant has made no specific averment against the Impugned Order dated 16.11.2011. It is further apparent from the grounds mentioned in the Appeal that the Appellant has not mentioned any valid and reasonable ground challenging the Impugned Order and has only made widely vague statements in a sweeping fashion on the basis of which the order dated 16.11.2011 cannot be set aside.
5. Nevertheless, it is pertinent to remark here that the Appellant has made certain averments in the written submissions/arguments which are reproduced hereunder as follows:
"The Ld. DCDRF, North-East, Delhi has erred in passing the impugned order on the basis of misconceived facts and none of the grounds mentioned by the Ld DCDRF is supported with the facts of record.
1. Competency of the Operating Surgeon to do Hysterectomy -The Appellant General Surgeon was not competent to remove the Uterus (Hysterectomy) and only Gynaecologist can do that. It is submitted that there is no legal bar on the General Surgeons to do Hysterectomy. Dr Abdul Khalique is a very experienced super- specialist and has performed thousands of Hysterectomies. Medical Literature by Dr. Hugo D. Ribot and another downloaded Findatopdoc.com are annexed and case law Purushottam Pareek Vs Dr Govind Dhavale & Ors (CC/82/2015) decided by DISMISSED PAGE 8 OF 11 FA NO.321/2012 DR. ABDUL KHALIQUE & ANR VS IQBAL AHMED & ANR D.O.D:05.07.2024 Hon'ble NCDRC on 17.03.2023 (refer para 16 and 17) is annexed hereto.
2. Consent for doing Hysterectomy The consent for surgery for Fibroid Uterus given by both the patient and her complainant husband is at page No. 1 to 3 with the Treatment Record (1-136).
3. Uterus was removed, being a medical necessity The USG dated 19.07.2009 advised by a Gynaecologist was brought by the patient which indicated Multiple Fibroids and the Uterus was anteverted. The Gynaecologist had advised surgery (hysterectomy - removal of uterus). The appellant did hysterectomy, as it was a medical necessity (Ref. page 6 & 10 of the Treatment Record of Hospital)
4. Heart Problem - The DCDRF has erred in concluding that she had heart problem due to a past surgery and despite that Cardiologist's consultation was not taken. It is submitted that her pre-operative Cardiac Evaluation was properly done (Echo and other test were done and her Cardiac Evaluation was got done by Dr. Vikas Jain, Consultant Cardiologist(Page 46 of T/Record) who had performed Valvular study (Ref. page 16, 17, 45 to 49 of Treatment Record filed by hospital pages 1-136)
5. Loss of Blood - It is true that the blood loss in this case was more than normal, but all possible steps were taken and blood was infused as per need. The Blood level had come down to 4.5 on 22.07.2009 (page 52 of T/Record), it improved to 5.6 on 23.07.2009 (page 60 of T/R), 6.2 on 24.07.2009 (page 61), 8.4 on 25.07.2009 (page 91 of T/R), 10.0 on 29.07.2009 (page 111 of TR) Thus the Hb had improved satisfactorily.
DISMISSED PAGE 9 OF 11 FA NO.321/2012 DR. ABDUL KHALIQUE & ANR VS IQBAL AHMED & ANR D.O.D:05.07.2024
6. The patient was discharged on request of the Complainant.
7. Neither ant negligence nor any deficiency can be attributed to the appellants in this case and the complainant deserves dismissal."
6. A perusal of the aforementioned arguments/submissions makes it clear that the Appellant has built an entirely new premise in the written arguments about which there is not a single whisper in the grounds as mentioned in the Appeal. It is noteworthy that the Appellant has introduced the aforementioned averments by way of the written submissions though there is no mention about the same in the Appeal. It is an established position of procedural law that a party cannot be permitted to plead beyond the contents of its pleadings and cannot be allowed to build a new case in the written submissions which are beyond the scope of the contents of the Appeal. We therefore, conclude that the Appellant cannot be allowed to raise averments extraneous to the grounds as mentioned in the Appeal. Furthermore, the grounds in the present appeal do not divulge any specific or substantial averment as regards to the order dated 16.11.2011. Thus, we opine that the Appellant has prima facie failed to carve out any grounds on the basis of which the order dated 16.11.2011 may be challenged or set aside.
7. In light of the above discussion, we find no reason to interfere with the order dated 16.11.2011 passed by the District Consumer Disputes Redressal Commission-North East, Bunkar Vihar Complex, Nand Nagri, Delhi-93. Consequently, the present Appeal stands dismissed with no order as to costs.
8. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
DISMISSED PAGE 10 OF 11 FA NO.321/2012 DR. ABDUL KHALIQUE & ANR VS IQBAL AHMED & ANR D.O.D:05.07.2024
9. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
10. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) (J.P.AGRAWAL) MEMBER (GENERAL) Pronounced On:
05.07.2024 DISMISSED PAGE 11 OF 11