State Consumer Disputes Redressal Commission
Basant Singh vs Jeevan Hospital on 13 June, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.790 of 2015
Date of Institution: 22.07.2015
Date of Decision : 13.06.2016
Basant Singh, Retd. Subedar Major son of Sh. Harnam Singh,
resident of village Arli Bhan, PO Dargabad, Tehsil Dera Baba Nanak,
District Gurdaspur.
.....Appellant/complainant
Versus
1. Jeevanjot Hospital, 13, Kamla Devi Avenue, Bye-pass, Fatehgarh
Churian Road, Amritsar.
2. Dr. Kamaljeet Singh Urologist, c/o Dr. Karam Singh Memorial
Orthopaedic & Multi Speciality Hospital and Research Centre, 16-
A, Doctor's Avenue (Near Ghalamala Chowk), Circular Road,
Amritsar.
3. ECHS Policlinic near Harkul Resort, Guru Teg Bahadur Colony,
Batala, District Gurdaspur through its officer-in-charge.
4. The New India Assurance Company with its Branch Office, 80
Court Road, Amritsar.
.....Respondent/complainant
First appeal against order dated
19.05.2015 passed by the District
Consumer Disputes Redressal
Forum, Gurdaspur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Shri J.S. Gill, Member Shri H.S. Guram, Member Present:-
For the appellant : Sh. J.S. Verka, Advocate For respondent no.1 : Sh. Updip Singh, Advocate For respondent no.2 : Sh. Puneet Sharma, Advocate For respondent no.3 : Ex-parte For respondent no.4 : None ................................................... J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellant of this appeal has directed it against order dated 19.05.2015 of the District Consumer Disputes Redressal Forum, Gurdaspur (in short the "District Forum"), vide which, the First Appeal No.790 of 2015 2 complaint of the appellant was dismissed. The appellant of this appeal is the complainant in the complaint and respondents of this appeal are OPs in the complaint before District Forum and they be referred as such hereinafter for the sake of convenience.
2. The complainant has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), against the OPs on the averments that he is retired Subedar Major and is a member of Ex-servicemen Contributory Health Scheme, vide membership no.CDOO26479 and his dependent policlinic is opposite party no.3. The complainant suffered urine problem in the year 2012 and he got treatment from ECH Policlinic Batala, where he was advised for ultrasound of his abdomen and accordingly he got abdomen ultrasound test four times i.e. twice from Bedi Ultrasound Batala and once from Walia Scanning Centre Batala and thereafter one from Nijjar Scanning Amritsar by spending money from his own pocket. On 04.12.2012, the complainant produced all the ultrasound test reports before the Policlinic Batala opposite party no.3 and they advised to get Transurethral Resection of the Prostrate (in short as 'TURP') and referred him to Jeevanjot Hospital Amritsar, which prepared the estimate of operation, which was sanctioned by Officer Incharge of OP no.3. After preparation of estimate of operation, the Officer Incharge of OP no.3 sanctioned the same and complainant reported to OP no.1 on 13.12.2012 and it gave the date for his TURP operation for 14.12.2012. The TURP operation was done on 14.12.2012 by OP no.1 and complainant was First Appeal No.790 of 2015 3 discharged on catheter from OP no.1 hospital on 19.12.2012 and he was advised to get the catheter removed after seven days. It was further averred that OP no.1 called Dr. Kamaljeet Singh from Dr. Karam Singh Memorial Orthopedic & Multi Specialty Hospital and Research Centre for conducting his TURP operation. While complainant was to be on catheter, the bleeding started from penis with outer portion of catheter pipe, but the doctor incharge of OP no.1 paid no heed and said it would be set right. When complainant left the hospital on 18.12.2012 on the advice of doctor incharge, at that time, he was suffering from continuous urine and heaviness of the lower portion and he requested the doctor incharge to retain him for one day more and then he was discharged on 19.12.2012 fitted with catheter. The complainant again reported at Jeevanjot Hospital OP no.1 on 26.12.2012 and his catheter was removed and some medicines were prescribed to him. He was advised to take water after removing the catheter and to store the urine and thereafter was asked to urinate, but complainant replied that he had already urinated twice and urine was coming continuously in driblets and lower portion of the complainant got heavy. After 26.12.2012, the urine started continuously oozing and complainant felt pain and heaviness in the lower region, while he was at home. The complainant talked on phone to OP no.2 regarding the trouble, but OP no.2 suggested him to come on 05.01.2013. The complainant again reported to OP no.2 and explained the whole story regarding his above trouble. He gave some medicines to complainant, but he First Appeal No.790 of 2015 4 felt no relief therewith. The complainant was referred to Fortis Escort Hospital Amritsar for consultation, where he was fully examined and was admitted and diagnosed and urine was passed by fitting the SPC and he was discharged therefrom on 26.01.2013 and was advised for follow up. The complainant received treatment from Fortis Hospital Amritsar till 25.02.2013, but on the intervening night of 7/8.03.2013, the complainant reported at Fortis Hospital Amritsar early in the morning regarding the trouble created by catheter pipe, as his urine was stopped and his catheter was changed. He was again admitted in hospital on 12.04.2013, where RGU/ICU was carried out and was discharged on 18.04.2013 and advised to come on 24.04.2013 alongwith referral letter and sanction for cystoscopic examination under GA and laser EIU/Long Segment and Urethral Stricture for the total cost of Rs.37,875/-. The complainant got it sanctioned from SEMO 172 Military Hospital, but SEMO 172 M.H. signed the letter with remarks 'refer patient to service hospital or do the list procedure only'. The treatment of the complainant was not in the listed procedure of Fortis Hospital Amritsar and they did not accept the letter. The complainant deposited Rs.10,000/- as advance for starting the treatment and after two days, the Fortis Hospital against demanded further money and complainant deposited Rs.62,000/- with it in three installments. The final bill of Rs.56,959/- was handed over to complainant at the time of discharge on 03.05.2013 and balance amount of Rs.5041/- was refunded to him. Costly medicine was prescribed to him, which was Tab Cystopen First Appeal No.790 of 2015 5 100 mgs thrice daily. After completion of operation, cystoscopic Urethral was not opened and Dr. Suresh Kumar Bhagat handed up to do so and advised to keep the SPC fitted permanently, the better method to urine, because this urethra would not open and if any doctor tried to open it by operation, there was apprehension of continuance of urine permanently. The complainant contacted Dr. Kamaljeet Singh Urologist, who did TURP on 14.12.2012 at Jeevanjot Hospital Amritsar and he advised him to contact Army Hospital (R&R) Delhi Cantt., because there was no treatment of this disease available at Amritsar. The complainant reported at Army Hospital (R&R) Delhi Cantt. on 31.05.2013 and after getting refusal letter for ECHS Batala and presented the letter issued by Dr. Kamaljeet Singh to Dr. Brig. S.C. Karan and he advised him to get some tests and accordingly he got all his tests completed and Dr. gave the date for conducting operation i.e. 12.06.2013. On 11.06.2013, the complainant reported at Army Hospital (R&R) Delhi Cantt. and Dr. Brig. S.C. Karan operated the complainant, but the operation was not successful one. The complainant was discharged from Army Hospital (R&R) on 19.06.2013. It was further averred that there was not any solution of disease of the complainant and he was advised to get the urine bye-passed in some other way i.e. mitrofanoff. On 08.08.2013, the complainant was advised to come again on 12.08.2013 for doing mitrofanoff. After discharge from Fortis Escorts Hospital Amritsar, the complainant consulted many Urologists at Ludhiana i.e. Apollo Hospital, CMC Hospital, Khosla First Appeal No.790 of 2015 6 Hospital Ludhiana, Dr. B.S. Aujla (Ex.DMC) for doing the needful, but they showed their inability to get the disease cured and said in case his operation was done, there was apprehension of continuance of urine, as the vital organ already stood cut off at the time of his TURP and all this came to the notice of the complainant after consulting several doctors. When complainant was at Army Hospital (R&R) Delhi, he contacted AIIMS Hospital and Sir Ganga Ram Hospital Delhi too, but they also showed their inability to get the operation completed and advised for not getting the mitrofanoff system fitted, as it was the last choice and advised him to keep this SPC fitted permanently for his life time. It was further pleaded that the complainant has been living a miserable life with duly fitted SPC (catheter) and it has to change after one month's frequency by spending Rs.600/- per month. In addition, the complainant has also to get medicine Cystopen and it costs Rs.50/- per tablet and he has been continuously taking it since 03.05.2013 twice a day. The complainant has, thus, prayed that OPs no.1 and 2 be directed to pay Rs.18 lakhs as compensation to the complainant alongwith interest @8% per annum on the amount till its realization, besides Rs.20,000/- as compensation for mental harassment and Rs.5000/- as litigation expenses for medical negligence and deficiency in service of the latter.
3. Upon notice, OPs no.1 and 2 appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred in the written reply that complainant was admitted in First Appeal No.790 of 2015 7 Jeevan Jot Hospital on 13.12.2012 as a case already diagnosed case of benign prostatic hyperplasia for TURP operation. The ultrasound submitted by the patient showed 39gm prostate with increased residual urine with trabeculations and pseudo diverticula formation. After initial assessment, patient was posted for surgery on 14.12.2012 and he was informed in detail about the nature of surgery and written signed consent was taken from the patient, before the surgery. The ultrasound report dated 28.07.2012 showed 39gms prostate with residual urine of 156 ml with increased bladder wall thickness measuring 5mm. Impression given was CYSTITIS with BHP grade II and ultrasound dated 01.09.2012 gave report of 39 gms prostate with residual urine of 162 ml with bladder wall thickness of 4.6. mm and the impression was 'cystitis with BHP grade II'. It was further averred that no treatment record was made available to OPs no.1 and 2 at the time of admission. The ultrasound report dated 22.09.2012 by Nijjar Scan showed increased wall thickness of urinary bladder with presence of trabeculations and pseudo-diverticula formation. The complete work up of the patient was done before surgery, which showed total leukocyte count of 8400 with neutrophil counts of 66%. The urine routine microscopy showed presence of 0-2 pus cells. The patient was started on antibiotics taxim and amikacin preoperatively for 24 hours, before surgery by OP no.2. The patient underwent TURP under spinal anesthesia done by OP no.2 on 14.12.2012 in fully equipped operation theatre of OP no.1 hospital under all aseptic conditions. It First Appeal No.790 of 2015 8 was further averred that OP no.1 has been a renowned urologist. Intraoperative findings showed around 35 gms prostrate with bilobular enlargement. Urethra at the time of the surgery was normal. The surgery went uneventful and after resection of the prostate 20F foleys was inserted and irrigation was started. After the removal of the catheter, the patient had urgency and urge incontinence with minor dribbling per urethra, a known post-operative complication, which was treated medically. The patient was re-catheterized on 19.12.2012 and was discharged on medical management with the advice to come after 7 days for removal of catheter. It was further averred that presence of chronic lymphocytic infiltrates with appearance of benign prostatic hyperplasia with no definite evidence of granulomatous or malignancy was shown in histopathology report. No remark has been made by the complainant at the time of discharge and rather showed complete satisfaction in feedback form signed by him. The foleys catheter was removed on 26.12.2012 and patient passed urine and was sent home with antibiotics and anticholinergics which were normally prescribed in such situations. The complainant did not complain of any major urinary problem or symptoms on 26.12.2012 He was called for follow up on 05.01.2013 and he complained of urgency and urge incontinence second time on his follow up on 05.01.2012. Immediate urine culture was advised and urine culture showed growth of staphylococcus coagulase negative organism, which was sensitive to amikacin, Nitrofurantoin and linezolid and complainant was started on antibiotics and asked First Appeal No.790 of 2015 9 for follow up after 10 days and to maintain good hygiene of the local (private) parts, but the patient never came back subsequently and was lost in follow up. It was further pleaded that complainant was got admitted in Fortis Escorts Hospital Amritsar on 23.01.2013 with complaints of heaviness in lower abdomen and urine retention and he underwent urethroscopy thereat, which showed whole of anterior urethra upto bulb which was unhealthy and strictured upto 12 F. The urine analysis done in this hospital again showed presence of many pus cells and patient was again discharged on tab linezolid (Tab LNZ 600 mg once a day). It was further averred that this drug was same, as prescribed by operating surgeon on 08.01.2013. A cystometrogram was done on 22.01.2013 and showed bladder capacity of 223ml and patient could pass 149 ml thus only 74 ml remained in the urinary bladder. In CMG two catheters were placed, one per urethrally and another in the anal canal. If the urethra had been cut off in the first surgery, how could the investigator pass the per urethral catheter. The urethroscopy showed unhealthy urethra secondary to urethritis which led to narrowing. The patient passed urine using his urinary bladder muscle power, as per the CMG report. On 24.01.2012, the complainant was discharged in satisfactory condition from Fortis Escorts Hospital. The complainant visited on many dates thereat for follow up and during all this period, he was not on any antibiotic in any form, it means that he covered for nearly 25 days without antibiotic. The culture was done on 07.04.2013. The complainant was again admitted in Fortis Escorts First Appeal No.790 of 2015 10 Hospital on 12.04.2013 for treatment of his ailment. After investigation, it revealed raised total leukocyte count and again urine showed many pus cells because of urinary infection in the patient. It was further averred that complainant was again admitted thereat on 30.04.2013 and he underwent cystoscopic, which showed scarred urethra with complete cut off at the level of the mid bulbar urethra. Antegrade scopy done revealed the presence of debris in the bladder and it reduced bladder capacity and serum creatinine increased to 4.6 mg% which subsequently decreased to the normal levels thereafter and then complainant approached OP no.2. It was very difficult case and required a team work and OP no.2 referred the complainant to Premium Army Medical Institute and he personally contacted the head of department Brig. Karan. At RR Hospital Delhi, the complainant underwent Endo-assessment Ant Urethral dilatation. The findings showed presence of debris again in the urinary bladder and complete stricture in the distal bulb. The complainant was discharged with plan of continent urinary diversion after all modalities were discussed with him and he did not come to OPs no.1 and 2 subsequently. It was further averred that complainant was a case of benign prostatic hyperplasia, which was common at this age and the patient had variety of problems because of prostatic enlargement. The complainant must have taken antibiotics from various practitioners previously, as it was not possible to develop such a multi drug resistant infection. Multiple urine analysis done at Fortis Escorts Hospital showed presence of First Appeal No.790 of 2015 11 large number of white blood cells in the urine, which directly indicated the present of infection. The complainant developed urethral stricture post TURP, which he blamed on the surgery being totally false. It was denied that complainant is the consumer of answering OPs. The complaint is alleged to be gross abuse of process of law. The complainant has not come to Forum with clean hands. The complainant has not any proof of medical negligence on the part of answering OPs. The answering OPs denied the other averments of the complaint and prayed for the dismissal of the complaint.
4. ECHS Policlinic Batala, opposite party no.3 filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that there was no deficiency in service on the part of OP no.3. The complaint is not maintainable, as complainant has concealed the material facts from the Forum regarding filing of complaint, which was earlier dismissed as withdrawn on 28.01.2014. On merits, it was averred that no specific record of treatment of the complainant was kept at Hospital. It was further averred that as and when patient came, he is given sympathetic treatment by Medical Officer. In case, treating doctor needed any investigation, he refers the patient to empanelled facility on referral form. There was no empanelled hospital/lab/scan facility available locally at Batala. The patient decided to get these investigations done at his own convenience and expenses to avoid traveling to empanelled hospital. OP no.3 referred the complainant to First Appeal No.790 of 2015 12 an empanelled hospital for consultation/investigation with permission on a referral form. The complainant approached Jeevanjot Hospital Amritsar with referral form, as it has facility for his urinary problem with his consent and endorsement to this effect was done on referral form. The record of treatment was held by treating doctor for purpose of raising reimbursement bills to government. The answering OP was not aware about the treatment obtained by the complainant from Jeevanjot Hospital. It was further averred that any ESM patient can take consultation/specialized treatment from any number of empanelled hospitals/doctors as and when required, as per procedure. The complainant was referred to the urologist at Fortis Escorts Hospital Amritsar for consultation and further treatment. It was further pleaded that ECHS polyclinic have been setup for providing service to the Ex-serviceman under a scheme and the referral letters are given to the patient for their better treatment from specialized doctor of empanelled hospital. The complainant was advised procedure by treating doctors, which came in non-listed category of procedure and not listed memorandum of agreement with ECHS. All non-listed procedures can be performed by only after getting permission from senior Executive Medical Officer/Senior Advisor of service Hospital of that speciality. Accordingly, the complainant was advised to go to a service hospital for further treatment, otherwise he could go in for non-listed procedure. Accordingly, he got his treatment from non-listed procedure on advice of doctor S.K. Bhagat at his own expenses, First Appeal No.790 of 2015 13 though there was a listed procedure available for same problem, as advised by SEMO. The answering OP denied any deficiency in service on its part. The complainant was given referral letter for Army R&R Hospital, Delhi, as demanded by the complainant. At no point of time, the complainant was refused treatment at ECHS, Batala. The answering OP denied the other averments of the complaint and prayed for the dismissal of the complaint.
5. OP no.4, The New India Assurance Company Limited filed its separate written reply by raising preliminary objections that complaint is not maintainable. The complainant has concealed the material facts from Forum regarding filing of complaint, which was earlier dismissed as withdrawn on 28.01.2014 and complaint deserved to be dismissed on this sole ground. The complaint is alleged to be without any cause of action. It was denied that complainant is consumer of it. The complaint falls under Exclusions mentioned in para no.9 of the terms and condition of the policy and is not maintainable. On merits, it was denied that due to above said problem created by the OPs no.1 and 2, the complainant cannot do any work or is unable to earn his livelihood. The answering OP is not liable to pay any compensation to complainant, as all the allegations of this complaint were against OPs no.1 to 3. OP no.4 denied the other averments of the complainant and prayed for the dismissal of the complaint.
6. The complainant tendered in evidence affidavit and documents Ex.C-1 to C-66 and closed the evidence. In rebuttal, OPs First Appeal No.790 of 2015 14 no.1 and 2 tendered in evidence affidavits and documents Ex.OP-1,2/1 to Ex.OP-1,2/5 and closed the evidence. OP no.3 tendered in evidence affidavit Ex.OP-3/1 and closed the evidence. OP no.4 tendered in evidence, affidavit and documents Ex.OP-4/1 to OP-4/3 and closed the evidence. On conclusion of evidence and arguments, the District Forum dismissed the complaint of the complainant. Dissatisfied with the above order, the complainant now appellant has preferred this appeal against the same.
7. We have heard the learned counsel for the parties and have also examined the record of the case. The order passed by the District Forum Gurdaspur in dismissing the complaint of the appellant has been challenged in this appeal before us. It was submitted by counsel for the appellant that the District Forum has ignored this fact that OP no.2 Dr. Kamaljeet Singh himself operated the appellant and advised to approach the Army doctors. There was no requirement for carrying out the operation because appellant faced difficulty in urine process only. The letter written by OP no.2 has not been given any significance by the Ld. District Forum. The counsel for the appellant further submitted that the District Forum has not considered the version of Board of Urology Expert of Army, Apollo Hospital, C.M.C. Hospital, Khosla Hospital, Fortis Escort Hospital that they were unable to get the disease cured because they have the apprehensions about it. The forceful submission of counsel for the appellant is that vital organ of appellant was cut at the time of TURP resulting into the long standing suffering of the First Appeal No.790 of 2015 15 appellant. Even OP no.2 Dr. Kamaljeet Singh Urologist, who operated the complainant in hospital of OP no.1 had not made the diagnostic process. OP no.3 advised to get TURP operation to complainant and referred him to Jeevanjot Hospital Amritsar OP no.1, which prepared the estimate of operation and surgery was conducted by OP no.2. Now, we are to examine the matter with the aid of evidence on the record whether there was any medical negligence on the part of the OPs in this case or not and as to whether order of the District Forum Gurdaspur under challenge in this appeal is sustainable or is liable to be reversed in this appeal. The submissions of counsel for the respondents in this appeal are that no medical negligence is involved on the part of OPs no.1 and 2 in this case and they have carried out the procedure in accordance with standard medial protocol only.
8. Affidavit of complainant is Ex.C-1 on the record to the effect that his vital organ in TURP operation was cut by OP no.2 resulting into suffering. The doctor incharge paid no heed when bleeding started from the penis with outer portion of catheter pipe of complainant. The doctor incharge assured that it would be alright, when complainant left the hospital. Ex.C-2 is the photograph of complainant with catheter. Ex.C-3 is the discharge summary issued by Jeevanjot Hospital Amritsar of complainant. It is evident from perusal of discharge summary report that complainant was admitted with BOO x one year. Sufficient unsuccessful medical management. USG grade II prostatomegaly with significant RUV. TURP done on First Appeal No.790 of 2015 16 14.12.2012. Post operative period had dribbling of urine. Had to be recatheterized. Discharged on catheter. Ex.C-4 is the histopathology report of complainant by Om Diagnositics Amritsar "Specimen- TUR- Prostate. Gross- Received multiple grayish white soft tissue pieces- collective size-5.0 cm. Microscopy--Sections show bits of prostatic tissue showing many prostatic glands in a fibromuscular stroma. The glands are lined by benign looking epithelium, showing cystic dilation and hyperplasia. Foci of chronic lymphocytic infiltrate are seen in the stroma. No definite evidence of any granulomatous pathology or malignancy is seen in the tissue examined. Appearances are those of Benign Prostatic Hyperplasia." Ex.C-5 is the clearance for discharge dated 26.01.2013 by Fortis Escort Hospital Amritsar of complainant. Ex.C-6 is discharge summary of complainant issued by Fortis Escort Hospital Amritsar. The chief complaint is patient presented with c/o heaviness in lower region and urine retention. The findings are that whole anterior urethra upto distal bulb was unhealthy and strictured upto 12F with meatal stenosis. The course in the hospital was that urine examination showed presence of protein(+), blood (+++) and RBC (20-30) and epithelial cells (8-10). The patient underwent Urethroscopy + Trocar SPC done on 24.01.2013. The procedure was uncomplicated. He is being discharged in satisfactory condition. Ex.C-9 to C-16 are the laboratory reports of complainant by Fortis Escort Hospital, Amritsar. Ex.C-19 is the image of abdomen of complainant in ultrasound report. Ex.C-20 is the investigation report of ultrasound dated First Appeal No.790 of 2015 17 14.01.2013 by Fortis Hospital Amritsar that urinary bladder is normally distended bladder volume is 213ml. No intraluminal Echogenic focus seen. Wall thickness is increased (6.9mm). Frostate shows post TURP changes. Residual prostate showed normal echotexture with smooth outline (wt:28.9 gms). Post void residue is 168 ml (significant). Expression : status post turp with grade I enlargement of residual prostate. Urinary bladder wall hypertrophy. Significant post void residue. Ex.C-24 and 25 are the treatment records at Fortis Escorts Hospital Amritsar. The discharge summary of complainant is Ex.C-26 and C-27 by Fortis Escorts Hospital Amritsar. The condition at discharge of the patient was stable. The course in the hospital is that patient presented with c/o urinary retention + pain in abdomen and back. Lab investigations were done raised level of TLC (22700), lactate dehydrogenase (260), creatinine (1.7) with low level of albumin (2.8) and total protein (5.6). Urine examination was done which showed presence of protein, blood, WBC & RBC. Urine & blood culture were negative. In view of his findings, the patient was treated symptomatically with appropriate IV antibiotics and other supportive medications which he tolerated well. His general condition improved. His stay in the hospital was uneventful. He is being discharged in satisfactory condition. Ex.C-29 to C-31 are the investigation lists of complainant. Ex.C-32 is the investigation report by Fortis Hospital, which is recorded as "Status Post TURP: Urinary bladder shows reduced capacity. Approx. volume is 150ml. There is mild irregularity of First Appeal No.790 of 2015 18 outline suggestive of wall thickening. Bulb of Foley's catheter is seen in situ. No other filling defect seen. Bilateral grade IV vesicourteric reflux seen. Bladder neck is open. Contrast is seen filling the dilated prostatic urethra even in resting phase. Straining films taken. However, patient was unable to micturate. Anterior urethra is not opacified. The impression recorded as "Status post TURP. Reduced capacity urinary bladder with hypertrophied wall. Patulous bladder neck with dilated posterior urethra. Grade IV VUR. Ex.C-33 is the culture report of complainant done by Nijjar Lab & Diagnostic Centre Batala that no growth of any pyogenic bacteria obtained after 24 hrs of incubation at 37 degree C. Ex.C-35 is clearance for discharge of complainant by Fortis Hospital. Ex.C-36 is the discharge summary of complainant issued by Fortis Hospital Amritsar dated 03.05.2013, wherein diagnosis recorded as "Urethral Stricture (Post Turp)? Intestinal Cystitis. Ex.C-42 is the ultrasound report of whole abdomen of complainant dated 25.04.2013 by Fortis Hospital, wherein the result recorded as "Liver shows normal size and echotexture. No focal lesion seen. Intrahepatic biliary radicles are dilated. Gall bladder is not well distended. However, lumen appears clear. CBD shows normal course & caliber. Portal vein shows normal course and caliber. Pancreas shows normal size, shape & echopattern. No focal lesion seen. Bilateral kidneys shows normal size, shape, outline & echogenicity. Corticomedullary differentiation is well maintained. There is mild dilatation of bilateral pelvicalyceal system. No evidence of calculus seen. Bilateral ureters are First Appeal No.790 of 2015 19 prominent in their entire coarse. Right kidney measures 10.2x4.6 in size. Left kidney measures 11.2x5.5 cm in size. Urinary bladder I undistended (Suprapublic catheter in situ). No evidence of ascites is present. Retroperitoneum is not well visualized due to overlying gas shadows. Impression : Follow up case of TURP - urethral stricture with bilateral vesico-ureteric reflux with mild bilateral hydroureteronephrosis and suprapubic catheter in situ." Ex.C-46 is the urology operation notes by Army Hospital (R&R), Delhi Cantt. of complainant and Ex.C-47 is the discharge note/medical case sheet of complainant by Army Hospital (R&R), Delhi Cantt. We have also examined the other documents placed on record by the complainant.
9. From discussion of above referred evidence on the record, we find that the patient was referred by OP no.3 for surgery to OP no.1 and surgery of complainant was conducted by OP no.2. It cannot be said that it is an unindicated surgery. The complainant did not respond to oral medication due to enlarged prostate, increasing residual urine on serial ultrasound, repeated attacks of cystitis and presence of trabeculations and pseudodiverticulae. It is not the case of complainant that OP no.2 is not a qualified urologist or he was not competent in this regard. The submission of the complainant now appellant is that urethra was cut during surgery, which resulted in all the problem. We are not impressed with this submission of counsel for the appellant. The patient suffered episodes of infection pre and post operatively as well. The ultrasound report has shown presence of features of cystitis and diverticulae formation prior to surgery. Post First Appeal No.790 of 2015 20 operatively, the patient had multiple episodes of infection. Even the medical literature as shown to us is that "enlarge prostate causes improper emptying of the bladder leading to a stagnant poor of urine in which germs (mainly bacteria) multiply leading to multiple episodes of infections. Usually prostatic enlargement presents with symptoms like- poor flow, difficulty in voiding, increased night time frequency, inadequate empting of the urine, dribbling, urgency and increased frequency of maturation. Some patients present late with complications of prostatic enlargement- acute urinary retention (increasing residual urine on serial ultrasounds), recurrent urinary tract infections (present in this patient), bladder damage (present in this case in form of bladder diverticulae and trabeculations), bladder stones and kidney damage. This patient symptomatology clearly indicated that he presented late with complications of bladder outlet obstruction due to prostatic enlargement. This patient's ultrasound reports submitted at the time of admission are clearly indicating that he had increased residual urine for more than six months before he got operated. Also there was formation trabeculations and pseudo diverticulae. Such kind of diverticulae appears in acquired setting in men over 60 years of age and are usually due to bladder outlet obstruction mainly due to prostatic enlargement (either benign or malignant) and are usually associated with presence of trabeculations (both these findings were present in the preoperative ultrasound scan of the patient). It leads to poor emptying of the urinary bladder thereby leading to pooling of and stagnation of urine First Appeal No.790 of 2015 21 thereby increasing the chances of having urinary tract infection (cystitis)."
10. From critical examination of the entire record, we find that it was a case of urinary track infection as the cystitis was present for more than six months before surgery and during this time, the patient must have received multiple course of antibiotics with alpha blockers. The complainant was aged patient and due to his age factor and above reasons, he suffered the problem. Presence of bladder outflow obstruction (which was increasing severity in terms of increased residual urine and formation of trabeculae and pseudodiverticulae) and male gender. So, in this case, the patient had complicated UTI due to his enlarged prostate which was damaging his urinary bladder shown by progressively increasing residual urine, pseudodiverticulae formation and cystitis. The incidence of urinary tract infections after TURP varied from 4 to 20% as per latest guidelines. Since, in this case, there were multiple reported episodes of cystitis preoperatively and presence of structural abnormality in the urinary bladder. It was considered an expected finding. If the urethra had been cut off in the first surgery (as per complaint) how could the investigator pass the urethral catheter. The patient passed urine using his urinary bladder muscle power per urethrally, as per CMG report. The endoscopic findings of Fortis Escorts Hospital clearly indicates presence of infection unhealthy urethra secondary to urethritis which lead to narrowing. First Appeal No.790 of 2015 22
11. Even the OPs have examined the expert doctors in this case on the record to negate the concept of any medical negligence on the part of OPs. We place reliance upon the affidavit of Dr. Kamaljeet Singh Ex.OP-1,2/1 in this regard. We also further rely upon affidavits of Dr. Gurjit Singh, Chief Surgeon, Mokha Hospital Batala Ex.OP-1,2/2 and of Dr. Shailenderjeet Singh Ex.OP-1,2/3 and of Dr. Brij Bhushan Goyal, M.S. (Surgey) Ex.OP-1/2/4. The expert doctors negated any medical negligence in this case on the part of OPs. Even from affidavit of Ex.Hav Paramjit Singh of ECHS Polyclinic Batala Ex.OP-3/1, the complainant was referred to Jeevanjot Hospital for his urinary problem. The complainant was referred to Senior Hospital for treatment by OP no.3.
12. As held by the Apex Court in case "Jacob Mathew Vs. State of Punjab & another" 2005(3)CPJ-(SC)-9 that a simple lack of care and error of judgment on the part of a professional is not negligence perse. As long as doctor follows a practice acceptable to medical profession on that date, he cannot be held liable for negligence. Herein, the complainant now appellant has not examined any expert doctor to prove that standard medical protocol was not followed by OP no.2 while conducting his surgery. It is not the case of complainant that OP no.2 is not a qualified and competent surgeon or lacked any competence. In view of law laid down by the Apex Court in case titled as "Kusum Sharma Vs. Batra Hospital" I(2010)CPJ-29(SC) that negligence cannot be attributed to a doctor so long as he performs his duties with First Appeal No.790 of 2015 23 reasonable skill and competence. He would not be liable if the course of action chosen by him was acceptable to the medical profession. No doctor can assure the recovery to the patient from any complication as well as they performed their duty with reasonable skill according to medical standard practice and they are qualified in that matter and hence cannot be held medically negligent. If the treatment goes wrong and the doctors are qualified and they have taken the standard medical course of treatment, then no medical negligence can be said to have been committed by them. We are unable to agree with the submissions of counsel for the appellant that there is any medical negligence on the part of the OPs in this case. A procedure may go wrong and it cannot be said that if procedure did not bear fruit, it was the result of sheer negligence of the OPs. So many factors contribute, like the age of the patient, his morbid condition, his genetic constitution and so on. Consequently, we find no illegality or material infirmity in the order of the District Forum in dismissing the complaint of the complainant, as no medical negligence or deficiency in service on the part of OPs has been established in this case. The order of the District Forum under challenge is affirmed in this appeal.
13. As a result of our above discussion, we find no merit in the appeal and the same is hereby dismissed.
14. Arguments in this appeal were heard on 07.06.2016 and the order was reserved. Now the order be communicated to the First Appeal No.790 of 2015 24 parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (J. S. GILL) MEMBER (H. S. GURAM) MEMBER June 13, 2016 (MM)