State Consumer Disputes Redressal Commission
Bharat Handa vs Beams Hospital on 5 March, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.383 of 2016
Date of Institution : 13.12.2016
Order reserved on: 01.03.2018
Date of Decision : 05.03.2018
Bharat Handa S/o Late Sh. Bal Krishna Handa, R/o 342, Shastri
Nagar, Lawrence Road, Amritsar.
.....Complainant
Versus
1. Beams Hospital (inside Adlakha Hospital), 29-B, Race Course
Road, Basant Avenue, Amritsar, through its Medical
Superintendent/Incharge.
2. Beams Hospitals Private Limited, Corporate Office; 640, 12th
main, 80 Feet Road, 4th Block, Koramangala, Bangaluru-560
034; through its Chairman/Managing Director/Director/Principal
Officer.
3. Dr. Abhay Aggarwal, M.B.B.S, M.S., Surgical Specialist, C/o
Beams Hospital, 29-B, Racecourse Road, Basant Avenue,
Amritsar.
.....Opposite Parties
Complaint U/s 17(1)(a) of the Consumer
Protection Act, 1986 (as amended up to
date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh. Sukhandeep Singh, Advocate For the opposite parties : Ex-parte ................................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite parties (OPs) on the averments, that he was overweight of 107 KG and came to know about Bariatric Surgery, the surgery to reduce weight being advertised by OP nos.1 and 2. He approached Consumer Complaint No.383 of 2016 2 OP no.1 hospital for this purpose and after consultation with OP no.3 and going by his misrepresentation and assurance of absolute safety in surgery, he as well as his family agreed to get his Bariatric Surgery performed from OP no.3 in OP no.1 hospital. On 17.01.2015, he deposited Rs.10,000/- with OP no.1 hospital for his Bariatric Surgery, for which he was given the date of surgery as 30.01.2015. In the meantime, few investigations were got done by the medical officers of OP and then PAC was done on 24.01.2015.
He was admitted in OP no.1 hospital by its nursing staff on 30.01.2015 itself and on 30.01.2015, OP no.3 came to the hospital and stated being stationed at Mumbai, and without proper investigations and pre-operative evaluation, straightway operated the complainant on the same day. Post-operatively, he assured complainant as well as his family members that the surgery was a success, and he left Amritsar for some other destination for surgery with the instructions to discharge the complainant from hospital on the 3rd day, i.e. 01.02.2015 without any post-operative evaluation of the complainant, who was traumatized due to above major surgery. The complainant paid Rs.1,50,000/- to OPs on 31.01.2015 for above surgery. Post-operatively, he was looked after by junior doctors and nursing staff of the hospital, who were not competent to handle and evaluate any emergent situation thereafter. Even the hospital was not having ICU to meet with pre-operative and post-operative complications, if so, required in ICU care. On 02.02.2015, at the time processing of discharge, the complainant developed excruciating Consumer Complaint No.383 of 2016 3 pain in his shoulders and he was detained in OP no.1 hospital for overnight. During the night, the pain increased and became unbearable, the staff nurse gave some injections to relieve his pain and advised him to try to sleep. Since, there was no relief from pain despite injection and hence at about 1:00 a.m. one Dr. A.P. Singh, who has been working as medical specialist in his own hospital as well as in EMC Hospital was contacted. His ECG was done repeatedly by Dr. A.P. Singh, but he did not come to any conclusion, then he contacted OP no.3 at Mumbai to discuss complainant's emergent situation with him. The condition of the complainant was worsening, as OP no.1 hospital was not having any facility of ICU to monitor him intensively, nor the staff of the hospital was competent for that purpose. At about 2:00 AM , he was shifted by Dr.A.P. Singh to EMC/Kakkar Hospital on the probable diagnosis of some serious heart problem, where his treatment was started on the lines of heart problem and treatment of blockage of arteries of heart and for dissolving the clot therein. In the morning, Dr. A.P. Singh prescribed detailed investigation of the complainant and during one such investigation, Dr. Rakesh Chouhan after conducting CT Scan of the complainant at Dhillon MRI centre diagnosed that the main cause of trouble of the complainant was not any heart ailment, but was due to improper stitching during surgery of the food pipe resulting into hole in it, as a result of which secretions from the gastric system were coming out into the belly of the complainant, which ultimately resulted into toxic condition. The whole body of the complainant was Consumer Complaint No.383 of 2016 4 turning blue due to toxicity and he required immediate care from a surgical specialist and he was shifted by his family to ALTEC Hospital, where Dr. Parveen Devgan, surgical specialist intubated him and started his treatment. At that time, the complainant was shivering badly and feeling intolerably cold, and his body turned blue, and he was trembling and was in a very serious condition. The family of complainant was in touch with OP no.3, who was shying away to own responsibility of the complication and he landed in Amritsar on 03.02.2015 by afternoon and interacted with Dr. Parveen Devgan, who explained about emergent situation. At ALTEC Hospital, OP no.3 in assistance of Dr. Parveen Devgan reopened the surgical site of the complainant, but OP no.3 stated that nothing could be done to save the complainant and then he abandoned him. He was repeatedly operated by Dr. Parveen Devgan in his hospital by passing the anastomose site and then kept him in ICU for about a month. Lungs of the complainant got filled with fluid and two holes were done in the chest for outflow of fluid collected therein and two holes were done in the stomach for intake and outflow of food fluid. Dr. Parveen Devgan gave a guarded prognosis for recovery, as condition of complainant was getting worsened. Then on some reference, the relatives of complainant called Dr. Vikas from Sir Ganga Ram Hospital, Delhi, who after examining the complainant advised to shift him immediately to his hospital so that something could be done to save his life. Vide referral slip dated 01.03.2015, he was shifted to Sir Ganga Ram Hospital Delhi. Dr. Parveen Bhati as Consumer Complaint No.383 of 2016 5 well as Dr. Anil Arora treated him thereat and they advised to prevent the leakage from his food pipe and endoscopic stenting was required to be done. Accordingly, a stent of the size of about 1-1/4 feet was inserted in his food pipe, which was a very painful procedure and he had to bear with the stent for about one and half month. During this period, relatives of complainant made repeated calls to OP no.3 for his advice and prognosis, but he refused to entertain. The complainant remained admitted in Sir Ganga Ram Hospital Delhi till 12.03.2015 and then after discharge from the hospital, he was advised to remain in Delhi for another 1-1/2 months for his follow-up. Since then, the complainant was suffering from acute depression, so much so that he even tried to commit suicide three times during this period and consequently he was admitted in Bhatia Gobal Hospital Delhi for treatment of depression under Dr. Parshant Goel, Psychiatrist. After discharge from Bhatia Global Hospital, the complainant lived in rental accommodation for follow-up treatment. After one and half month, stent was removed endoscopically on 13.04.2015 through his mouth, which was very painful. The hole in his food pipe was not completely closed and it was found that the alignment of the food pipe too went wrong, thus, after taking medicinal treatment from Sir Ganga Ram Hospital for another one month, the hole was completely healed, though during this whole period, he did not consume even a drop of water per mouth. Still the complainant has been on regular follow-up with Sir Ganga Ram Hospital, wherein he has been undergoing very costly Consumer Complaint No.383 of 2016 6 investigations every month. Relatives of complainant repeatedly approached OP no.1 hospital to supply the copy of indoor file and other relevant treatment record of his treatment in OP no.1 hospital and to compensate the complainant for treatment cost, which was very exorbitant, as well as for sufferings of the complainant as he was suffering only due to deficiency and negligence of OP no.3 while operating the complainant, which resulted into above problems to him. Since, OPs did not supply the treatment record to the complainant, a notice dated 14.07.2016 under provision of Indian Medical Council Regulation 2002 for supply of treatment record was served upon OP no.1 by him, but to no effect. Another notice in this regard was served upon OPs on 17.09.2016, but no medical record of treatment was supplied to him by OPs. The complainant has alleged medical negligence and deficiency in service on the part of OPs and prayed that OPs be directed to pay compensation of Rs.95,00,000/- with interest, which include amount spent on treatment alongwith compensation, with interest for negligence as well as deficiency in service committed by OPs; further to pay Rs.1,00,000/- as litigation expenses.
2. OPs have not appeared despite substituted service and were set exparte, vide order dated 10.11.2017 before this Commission.
3. The complainant tendered in exparte evidence his affidavit Ex.C-A and affidavit of his wife Monika Handa Ex.C-B Consumer Complaint No.383 of 2016 7 alongwith copies of documents Ex.C-1 to C-20 (colly) and closed the exparte evidence.
4. We have heard the learned counsel for the complainant and have also examined the record of the case in this exparte complaint. The complainant tendered in evidence his affidavit Ex.C-A on the record in support of his averments in this case. He deposed that pursuant to inducement of OPs, he underwent Bariatric Surgery which was done by OP no.3 in OP no.1 hospital and OP no.2 is the owner of the hospital. On 17.01.2015, the complainant deposited Rs.10,000/- with OP no.1 hospital, vide Ex.C-2, for getting Bariatric Surgery done for which he was given date of surgery as 30.01.2015 and all the details of complainant were noted in Ex.C-1 by OPs. Some investigations were conducted upon him by staff nurse of OP no.1 hospital on 30.01.2015. OP no.3 came to the hospital from Mumbai and without proper investigations and pre-operative evaluation, straightway operated the complainant on the same day. OP no.3 assured complainant and his family members that the surgery was successful, and he left Amritsar for some other destination for surgery with the instructions to discharge the complainant from hospital on the 3rd day, i.e. 01.02.2015 without post-operative evaluation of the complainant, who was traumatized due to major surgery. This witness further deposed that complainant paid Rs.1,50,000/- to OPs on 31.01.2015, vide Ex.C-6, for above surgery. Post-operatively, he was looked after by junior doctors and nursing staff of OP no.1 hospital, who were not competent to handle Consumer Complaint No.383 of 2016 8 and evaluate any emergent situation post-operatively and even the hospital was not having ICU. Complainant developed severe pain in his shoulders on 02.02.2015 and he was examined by the doctor at duty and he stated that there was nothing to worry. The pain become unbearable for him, which radiated further from shoulder to chest and he sweat profusely. He further maintained in his statement that at about 1:00 a.m. one Dr. A.P. Singh was called upon in OP no.1 hospital, he treated him on the line of heart ailment without any relief to him. The complainant was shifted by Dr.A.P. Singh to EMC/Kakkar Hospital on the probable diagnosis of some serious heart problem, where his treatment was started on the lines of heart problem. In the morning, Dr. A.P. Singh prescribed detailed investigation of the complainant, vide Ex.C-7, and during one such investigation, Dr. Rakesh Chouhan after conducting CT Scan (Ex.C-8) of the complainant at Dhillon MRI centre informed that the main cause of his trouble was not related to any heart ailment, but was due to improper stitches during surgery causing hole in it, as a result of which secretions from the gastric system were coming out into the belly of the complainant, which ultimately resulted into toxic condition. The whole body of the complainant was turning blue due to toxicity and he required immediate care from a surgical specialist. Accordingly, the complainant was shifted by his family to ALTEC Hospital, where Dr. Parveen Devgan, surgical specialist intubated him and started his treatment. The complainant was shivering badly at that time and his body turned blue. The family of complainant was Consumer Complaint No.383 of 2016 9 in touch with OP no.3, who was shying away to own responsibility of the complication and he landed in Amritsar on 03.02.2015 by afternoon and interacted with Dr. Parveen Devgan, who explained about emergent situation. At ALTECH Hospital, OP no.3 in assistance of Dr. Parveen Devgan reopened the surgical site of the complainant, but OP no.3 stated that nothing could be done to save the complainant and then he abandoned him. He repeatedly operated by Dr. Parveen Devgan in his hospital by passing the anastomose site and then kept him in ICU for about a month. Lungs of the complainant got filled with fluid, the CT Scan report dated 14.02.2015 is Ex.C-9. Two holes were done in his chest for out flow of fluid collected therein and two holes were done in his stomach for intake and outflow of food fluid. He was taken to Sir Ganga Ram Hospital Delhi, when he got no relief therefrom and was treated there, vide referral slip dated 01.03.2015 Ex.C-10. Dr. Parveen Bhati as well as Dr. Anil Arora treated him thereat and they advised to prevent leakage from food pipe, endoscopic stenting was required to be done. Accordingly, a stent of the size of about 1-1/4 feet was inserted in the food pipe which was a very painful procedure and he had to bear with the stent for about one and half month, copy of ERCP report dated 03.03.2015 and ultrasound scan report dated 05.03.2015 are Ex.C-11 and C-12. The complainant remained admitted in Sir Ganga Ram Hospital Delhi till 12.03.2015 and then after discharge from the hospital he was advised to remain in Delhi for another one and half month for his follow-up treatment. Since Consumer Complaint No.383 of 2016 10 then, the complainant was suffering from acute depression, so much so that he even tried to commit suicide three times during this period and consequently he was admitted in Bhatia Gobal Hospital Delhi for his treatment of depression under Dr. Parshant Goel, Psyciatrist, vide Ex.C-14. After discharge from Bhatia Global Hospital, vide Ex.C-15, the complainant lived in rental accommodation for follow-up treatment. After one and half month, stent was removed endoscopically on 13.04.2015 (Ex.C-16) through mouth, which was very painful. During this whole period, he did not consume even a drop of water per mouth. This witness further deposed that one of the Directors and CEO of OP no.2, Mr. Niraj Manglam came to Amritsar and gave in writing on 28.03.2015 that OPs would compensate complainant to the tune of Rs.18,00,000/-, but so far only Rs.2,00,000/- has been received from OPs by him. He further testified that relatives of complainant repeatedly approached OP no.1 hospital to supply copy of indoor file and other relevant treatment record of his treatment in OP no.1 hospital and to compensate the complainant for treatment cost, which was very exorbitant, as well as for sufferings of the complainant, as he was suffering only due to deficiency and negligence of OPs. OPs did not supply the treatment record to the complainant, a notice dated 14.07.2016 under provision of Indian Medical Council Regulation 2002 for supply of treatment record was served upon OP no.1 by him, vide Ex.C-18, but to no effect. Another notice in this regard was served upon OPs on 17.09.2016, vide Ex.C-19, but no medical Consumer Complaint No.383 of 2016 11 record of treatment was supplied to him by OPs. The complainant has also filed affidavit of Monika Handa Ex.C-B in support of his averments.
5. We have examined the evidence on the record of the complainant. It is proved fact that complainant was operated upon by OP no.3 at hospital of OP no.1 owned by OP no.2 for bariatric surgery. The complainant paid the amounts to OPs, vide receipt Ex.C-2 and Ex.C-6 on the record. The chest X-ray report of complainant conducted by Dr. R. Chouhan, M.D. at Dhillon X-ray Associates on 23.01.2015 is Ex.C-3 on the record was normal. The ultrasonograpy report issued by Dhillon Ultrasound Scan Centre dated 24.01.2015 of complainant is Ex.C-4 showing the impression of fatty liver grade II-III and no other abnormality was detected in it. Ex.C-5 is the prescription slip. Ex.C-8 is the copy of CT Scan report of complainant dated 03.02.2015 issued by Dhillon C.T. Scan Centre, showing leakage at the anastmotic site in the region of the gastro esophageal junction, which proved that the above problems were caused to complainant by doing wrong suturing of food pipe of complainant by OP no.3 in OP no.1 hospital. There is another CT Scan of Abdomen and Chest report dated 14.02.2015 of complainant Ex.C-9, showing mild to moderate degree of left sided pleural effusion with basal consolidative/atelectatic changes on the left side. Consolidative changes were also seen involving the basal segment of the right lower lobe. The complainant was treated for consequential complications at ALTEC Hospital Amritsar, vide C-10 Consumer Complaint No.383 of 2016 12 on the record. Ex.C-11 is ERCP report of complainant conducted by Department of Gastroenterology at Sir Ganga Ram Hospital, New Delhi. Ex.C-11 has proved that impression post bariatric surgery leak, stent placement done. Ex.C-12 is the report of ultrasound for ascites of complainant showing minimal free fluid, which was seen in perihepatic region. Ex.C-13 is the discharge summary of complainant issued by Sir Ganga Ram Hospital New Delhi, where he was treated for this leakage in the food pipe of the complainant. We have also examined the other documents on the record brought in exparte evidence by the complainant on the file.
6. It is, thus, proved fact in this exparte evidence of the complainant that OP no.3 conducted bariatric surgery at hospital of OP no.1 owned by OP no.2 on the complainant. The complainant paid the consideration to OP no.1 hospital vide Ex.C-2 and C-6 on the record. There was no leakage in the food pipe of the complainant, prior to bariatric surgery, which fact is amply proved on record by the CT Scan report of Dhillon CT Scan Centre dated 24.01.2015 Ex.C-4. Subsequent to bariatric surgery, the complainant showed leakage at the anastomotic site in the region of the gastro esophageal junction. The leakage of food pipe of complainant occurred in bariatric surgery, which was mainly directed at the food pipe of the patient in reducing it. The complainant was treated for this consequential cut in the food pipe at other hospitals, lastly at Sir Ganga Ram Hospital. He incurred expenses therefor. Ex.C-17 is the letter on the record from Niraj Kumar Manglam, CEO of OP no.1 Consumer Complaint No.383 of 2016 13 hospital on 28.03.2015 regarding paying the compensation of Rs.18,00,000/- to complainant. It contains admission of OPs for this deficiency in service by all implications. The negligence on the part of OPs is established in this exparte evidence on the record. We find support from law laid down by the National Commission in "Kalpana Vs. Dr. K. Ramalakshmi & another" 2015(1)CPJ-79, wherein perforation in the uterus and then in the intestine was caused during surgical procedure due to negligence of doctor of the hospital which fact was established. Herein, the very point of cut in the surgical procedure by OP no.3 is indicative of negligence on the part of OP no.3 at hospital of OP no.1 owned by OP no.2 by not taking post operative care thereof. The principle of res ipsa loquitur is also attracted in this case as also so held by the National Commission in "Vijay Healt Centre Vs. Chandra Das and others" 2015(2)CLT-
494. The complainant also applied for supply of treatment record to OP no.1 hospital, which was not supplied to him and it is also violation of Indian Medical Regulation 2002 by OPs, which is the barometer of negligence on the part of OPs, as held by the National Commission in "Medical Superintendent Lok Nayak Jai Prakash Narain Hospital & others Vs. Km. Santosh (Minor)" 2016(2)CPR-
268. The OPs are, thus, found negligent and deficient in service on the point of causing damage to food pipe of the complainant in bariatric surgery and not taking postoperative care of the complainant thereafter to close it. The complainant had to suffer lot of consequential problems therefore. The OPs have also not Consumer Complaint No.383 of 2016 14 supplied the treatment record to complainant, which is also a fact pinpointing towards negligence of OPs in this case.
7. As a result of our above discussion, we exparte accept the complaint of the complainant by directing OPs to pay the compensation of Rs.18,00,000/- to complainant by relying upon Ex.C-17 and the amount of Rs.2,00,000/- already received by complainant from OPs, shall be deducted out of it. The OPs are also directed to pay compensation of Rs.50,000/- for mental harassment and Rs.20,000/- as costs of litigation to complainant. The above amounts shall be paid by OPs to complainants within two weeks period from the date of receipt of copy of this order, failing which it will carry interest @8% per annum from the date of complaint till actual payment. The liability of OP nos.1 to 3 to pay the above referred amounts to complainant shall be joint and several.
8. Arguments in this complaint were heard on 01.03.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
9. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER March 05, 2018.
(MM)