State Consumer Disputes Redressal Commission
Dr. Gagandeep Goyal vs Arti & Ors. on 5 May, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.316 of 2013
Date of Institution: 20.03.2013
Date of Decision : 05.05.2016
Dr. Gagandeep Goyal, R Gagan Gastro Care Hospital, 80 ft. Road,
Balmiki Chowk, Near Sports Stadium, Bhathinda.
...Appellant/Opposite Party No.2
Versus
1. Arti aged about 22 years w/o Balwinder R/o Ward No.12,
Tungwali Road, Near Lakkar Area, Bhucho Mandi, Tehsil
Nathana District Bathinda.
.....Respondent no.1/Complainant
2. Dr. Sanjay Garg, Delhi Nursing Home, Multi Speciality Hospital
and Institute of Laparoscopic Surgery, Bibi Wala Road, Near
Old Bus Stand Bathinda.
3. New India Assurance Company Limited, Divisional Office
(360600) 2090, The Mall Bathinda through its Divisional
Branch Manager.
4. United India Insurance Company Limited, 54, Janpath,
Cannaught Place, New Delhi through its Sr. Branch Manager.
.....Respondents no.2-4 /Opposite parties no.1,3 & 4
First Appeal against order dated
28.01.2013 passed by the District
Consumer Disputes Redressal Forum,
Bathinda.
Present:-
For the appellant : Sh. Inderjit Sharma, Advocate
For respondent no.1 : Sh. Ashish Grover, Advocate
For respondent no.2 : None
For respondent no.3 : None
For respondent no.4 : Sh. Parminder Singh, Advocate
............................................
2) First Appeal No.323 of 2013
Date of Institution: 21.03.2013
Date of Decision : 05.05.2016
Arti aged about 22 years w/o Balwinder R/o Ward No.12, Tungwali
Road, Near Lakkar Area, Bhucho Mandi, Tehsil Nathana District
Bathinda.
.....Appellant/complainant
First Appeal No.316 of 2013 2
Versus
1. Dr. Sanjay Garg, Delhi Nursing Home, Multi Speciality Hospital
and Institute of Laparoscopic Surgery, Bibi Wala Road, Near
Old Bus Stand Bathinda.
2. Dr. Gagandeep Goyal, R Gagan Gastro Care Hospital, 80 ft.
Road, Balmiki Chowk, Near Sports Stadium, Bhathinda.
3. New India Assurance Company Limited, Divisional Office
(360600) 2090, The Mall Bathinda through its Divisional
Branch Manager.
4. United India Insurance Company Limited, 54, Janpath,
Cannaught Place, New Delhi through its Sr. Branch Manager.
.....Respondents/Opposite Parties
First Appeal against order dated
28.01.2013 passed by the District
Consumer Disputes Redressal Forum,
Bathinda.
Present:-
For the appellant : Sh. Ashish Grover, Advocate
For respondent no.1 : None
For respondent no.2 : Sh. Inderjit Sharma, Advocate
For respondent no.3 : None
For respondent no.4 : Sh. Parminder Singh, Advocate
.................................................
AND
3) First Appeal No.324 of 2013
Date of Institution: 22.03.2013
Date of Decision : 05.05.2016
United India Insurance Company Limited, 54, Janpath, Cannaught
Place, New Delhi through duly constituted attorney Dr. S.K. Takyar,
Manager.
.....Appellant/opposite party no.4
Versus
1. Arti aged about 22 years w/o Balwinder R/o Ward No.12,
Tungwali Road, Near Lakkar Area, Bhucho Mandi, Tehsil
Nathana District Bathinda.
.....Respondent no.1/Complainant
2. Dr. Sanjay Garg, Delhi Nursing Home, Multi Speciality Hospital
and Institute of Laparoscopic Surgery, Bibi Wala Road, Near
Old Bus Stand Bathinda.
3. New India Assurance Company Limited, Divisional Office
(360600) 2090, The Mall Bathinda through its Divisional
Manager.
First Appeal No.316 of 2013 3
4. Dr. Gagandeep Goyal, R Gagan Gastro Care Hospital, 80 ft.
Road, Balmiki Chowk, Near Sports Stadium, Bhathinda.
.....Respondents no.2-4/Opposite parties no.1, 2 &3
First Appeal against order dated
28.01.2013 passed by the District
Consumer Disputes Redressal Forum,
Bathinda.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Shri. J.S. Gill, Member Present:-
For the appellant : Sh. Parminder Singh, Advocate For respondent no.1 : Sh. Ashish Grover, Advocate For respondent no.2 : None For respondent no.3 : None For respondent no.4 : Sh. Inderjit Sharma, Advocate ................................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
By this common order, we intend to dispose of the above referred three connected first appeals, as they have arisen out of the same order of the District Consumer Disputes Redressal Forum, Bathinda (in short 'the District Forum') dated 28.01.2013. The order shall be pronounced by us in main first appeal no.316 of 2013 titled as "Dr. Gagandeep Goyal Vs. Arti & others".
2. The appellant of first appeal no.316 of 2013 (opposite party no.2 in the complaint) has directed this appeal against respondent no.1 of this appeal (the complainant in the complaint) and respondent no.2 to 4 herein (opposite parties no.1,3 & 4 in the complaint), assailing order dated 28.01.2013 of District Consumer Disputes Redressal Forum Bathinda, vide which, the complaint of the complainant was accepted against OPs no.2 & 4 by directing them to pay compensation of Rs.3,00,000/- as compensation which First Appeal No.316 of 2013 4 includes treatment expenses besides physical pain and sufferings to complainant and dismissed it qua OPs no.1 and 3.
3. First appeal no.323 of 2013 has been filed by the appellant of this appeal (the complainant in the complaint) against the respondents herein (the opposite parties in the complaint) for enhancement of compensation awarded by the District Forum, vide order dated 28.01.2013.
4. First appeal no.324 of 2013 has been filed by the appellant of this appeal (opposite party no.4 in the complaint) against respondent no.1 of this appeal (the complainant in the complaint) and respondents no.2 to 4 herein (opposite parties no.1,2 and 3 in the complaint), challenging order dated 28.01.2013 of District Consumer Disputes Redressal Forum, Bathinda, vide which, the complaint of the complainant was accepted against OPs no.2 & 4 and dismissed it qua OPs no.1 and 3.
5. Complainant Arti has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that when she went to OP no.1 for check up and treatment of pain in right side of abdomen region; she was advised for ultrasound scan of the abdomen and complainant got it done from OP no.1. After going through ultrasound scan report, OP no.1 advised for her operation of gallbladder to remove small stones within 3-4 months and the stones could be removed by laparoscopic surgery, which was then modern technique. On 20.11.2011, the complainant alongwith her husband again visited the hospital of OP First Appeal No.316 of 2013 5 no.1 for severe pain in her abdomen and she was again advised for ultrasound scan. The complainant again got conducted her ultrasound scan done from OP no.1. After going through the report of ultrasound scan, OP no.1 advised her for operation through laparoscopy, but the complainant was not in a position for operation of gallbladder being with a born new child near about 10 months at that time and on dated 11.01.2012, the complainant alongwith her husband again visited the hospital of OP no.1 and he advised her for emergency operation to remove stones from her gallbladder with modern technique/laparoscopic surgery and OP no.1 represented himself to be an expert in that type of surgery and assured the complainant and her husband that everything would be done rightly and accurately and special skill of laparoscopic surgery would be done to the complainant. On 11.01.2012, the complainant surrendered herself to OP no.1 for better operation to remove stones from her gallbladder by laparoscopic surgery, after making arrangement of huge money on the instructions and assurance of OP no.1. After admitting the complainant in the hospital of OP no.1, he started treatment with glucose drips alongwith strong antibiotic and intoxicant drugs without conducting any x-ray or lab test and without any scanning test, which resulted in adverse effects and the condition of the complainant had become serious due to wrong and unnecessary strong antibiotic and intoxicant drugs. OP no.1 took the complainant in operation theatre for check-up and she was injected anesthetic medicines which made the complainant unconscious and First Appeal No.316 of 2013 6 he operated the gallbladder of complainant for removing stones with modern technique laparoscopic surgery, in a negligent manners and the said gallbladder was removed in the said operation without any consent and knowledge of the complainant or her husband. The complainant did not feel any relief after laparoscopic surgery and she was discharged on 13.01.2012 afternoon after prescribing antibiotics and pain killer medicines, without any relief. On 15.01.2012, she alongwith her husband visited OP no.1 for severe pain in abdomen as lot of complications developed in her abdomen and she remained admitted in OP no.1 for the period 15.01.2012 to 25.01.2012. OP no.1 got ultrasound scan and other tests and on dated 20.01.2012, he referred her to Gastroenterologist Dr. Gagandeep Goyal i.e. OP no.2 for her check-up and treatment and for MRI Scan/City Scan, being critical condition of the complainant, as after operation, the complainant developed complications of pain in abdomen, which was due to leakage of bile from CBD, as shown in city scan report dated 20.01.2012. After going through the CT scan report, OP no.2 inserted CBD stent for closing the leakage of bile, but to no effect. On 25.01.2012, OP no.1 on the advice of OP no.2 discharged the complainant without any relief by way of prescribing antibiotics and pain killer medicines. On 31.01.2012, the complainant again visited the hospital of OP no.2 on the instructions of OP no.1 with severe pain in abdomen. The complainant got conducted her scan from Pioneer Imaging & Diagnostics, Bathinda on advice of OP no.1 and also got conducted her lab tests from Dr. Monika's Lab. On First Appeal No.316 of 2013 7 02.02.2012, OP no.2 with consultation of OP no.1 referred her to PGI, Chandigarh. On 02.02.2012, the complainant got herself admitted in Dayanand Medical College & Hospital, Ludhiana (DMC) for further treatment of complications having arisen due to wrong laparoscopic surgery and wrong insertion of CBD stent by OP no.2 and she remained admitted there as indoor patient upto 11.02.2012. Dr. Satpal Singh Virk, M.S. (Surgery), M.Ch. (Gastroenterology Surgery) found that condition of complainant was serious due to pain in abdomen, distension of abdomen x 6 days, vomiting and fever and small gut swollen up measuring 5.2.cm, free fluid in pelvis and ERCP stunting active leak of bile near clip site and he further diagnosed the disease, as post cholecystectomy biliary stricture and got done the city scan and x-ray alongwith lab tests and after going through the scan on 04.02.2012; a major operation of the complainant was done by Dr. Satpal Singh Virk and he removed the pus, all the fluids and materials which were to be passed through the bile and started over- flowing and collecting in the abdomen and due to bile leakage, which was collected in the abdomen and providing better treatment to the complainant for removing the complications. On 11.02.2012, the complainant was discharged by the said doctor and complainant suffered physical pains in all this procedure. On 17.02.2012, the complainant visited DMC Hospital Ludhiana for consultation and on 19.02.2012, the stiches were removed and thereafter on 06.03.2012, the complainant again visited DMC Ludhiana for her check up and treatment. On 13.03.2012, she was again operated at DMC First Appeal No.316 of 2013 8 Ludhiana and remained admitted there upto 17.03.2012. It was further averred that complainant visited DMC Ludhiana for her check up on various dates. At present; the complainant is feeling her recovery under treatment of DMC doctors. The complainant is bed ridden and could not work/walk easily being in physical weakness without support of anybody. It was further alleged that OP no.1 failed to conduct successful major operation through laparoscopic surgery due to his inefficiency, negligence. OP no.2 inserted CBD stent in negligent manner without sterilizing the instruments and due to this; complainant had to spend huge money on her treatment and she also suffered mental harassment and physical pain. It was further alleged that OPs are not qualified doctors. The complainant has, thus, prayed that OPs be directed to pay Rs.15,00,000/- as compensation, ii) Rs.10,000/- as costs, iii) to pay Rs.2,54,000/- for treatment expenses alongwith 18% interest.
3. Upon notice, OP no.1 appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred in preliminary objections that complaint is false, frivolous and vexatious and is not maintainable. The complainant failed to explain how OP no.1 is negligent in performing his medical procedure. The complaint has been filed by complainant just to waste the time and to harass OP no.1. Any medical negligence or deficiency in service was vehemently denied by OP no.1. The complaint has been filed with the sole motive of extracting money from him. The patient/complainant was properly examined, investigated and First Appeal No.316 of 2013 9 diagnosed by OP no.1, as per prescribed norms of medical practice. OP no.1 is well qualified and reputed surgeon and he had done MBBS, M.S and he is duly registered with Punjab Medical Council, vide registration no.25362 in 1989 and he served as a laproscopic Surgeon at Ganga Ram Hospital, New Delhi and has performed more than 5000 surgeries successfully and he is a pioneer member of IAGES, the only pioneer laparoscopic group of surgeons in India. OP no.1 is insured with OP no.3. Complex facts and law are involved in this case and matter cannot be adjudicated in summary manner by Consumer Forum and hence it was submitted that parties be relegated to Civil Court for resolution of dispute. It was further averred that OP no.1 being the treating doctor tried his level best and used highest degree of skill to the best of his abilities in this case. The complainant was well informed about quality, infrastructure and hospital facilities. The complainant leveled the allegations without support of any scientific literature in this regard; hence the complaint is liable to be dismissed. OP no.1 has successfully done laparoscopic procedure on 11.01.2012 upon complainant for removing the stones from gallbladder of complainant after doing all the requisite tests/ investigations with due care and caution. OP no.1 alongwith Dr. Gagandeep Goyal examined the patient and CT Scan was done, which revealed biliary leak and hence ERCP and stent was put as per prescribed norms of general practice mentioned in the text books. The surgery done at DMC Ludhiana subsequently on the patient for appendicular infection is in First Appeal No.316 of 2013 10 no way concerned with the surgery performed earlier by OP no.1 and is entirely different medical procedure. The complainant never visited OP no.1 for further treatment and leveled baseless allegations against him. It was denied that OP no.1 performed Laparoscopic Cholecystectomy without requisite test and investigation and without proper care and caution and due to this; she had to suffer physical pain, mental tension. OP no.1 denied any medical negligence on his part and prayed for the dismissal of the complaint.
4. OP no.2 filed separate written reply and contested the complaint vehemently. It was averred in legal objections that compliant is not maintainable. It was denied that complainant is consumer of OPs. Any deficiency in service or unfair trade practice was stoutly denied by OP no.2. Complex questions of facts and law are alleged to have been involved in this case and matter was prayed to be relegated to Civil Court only. The complaint is alleged to be without any cause of action and without jurisdiction being false and frivolous. On merits, OP no.2 controverted the averments of the complainant regarding any medical negligence on the part of OP no.2. It was admitted that OP no.1 referred the complainant to him for check up. The case of complainant was a post lap cholecystectomy status. She had recurrent pain in abdomen after the surgery done by OP no.1, as per patient. She was also having fever, tachycardia and mild tenderness in the right upper abdomen. The possibility of bile collection and post cholecystectomy bile leakage First Appeal No.316 of 2013 11 was kept. After examination of patient, ERCP was advised and all the procedure was explained to the complainant and her husband and line of action was also told to them. After understanding the nature of treatment; the complainant gave consent to OP no.2. ERCP was done with all the aseptic conditions, and all the instruments were properly sterilized. Anesthesia was given by Anesthetics. ERCP showed presence of active leak and stent was placed on. The whole procedure was very smooth and it took 15 minutes and complainant was discharged from hospital in good condition. The complainant was complaining about pain, but OP no.2 did not find any problem with the stent, so the patient was advised for re-evaluation of symptoms with OP no.1, who did the surgery, but she refused to visit OP no.1 and requested to refer her to PGI Chandigarh. OP no.2 referred her to PGI on her request. It was further alleged that OP no.2 inserted the stent to control the leakage of bile and DMC found the treatment given by OP no.2 correct and according to established medical line. It was further pleaded that DMC did re-evaluation and further investigated and gastro surgeon advised re-surgery and surgical findings clearly written on the DMC discharge card was appendicular perforation and presence of collection of alleged fluid which has nothing to do with the insertion of stent. Rather placement of stent stopped the alleged bile leakage. If the stent was not inserted in time, the condition of patient would have been worse.ERCP placement of stent prevented further bile leakage and damge. It was denied that complainant suffered any First Appeal No.316 of 2013 12 loss or she spent Rs.2,54,000/-. It was further denied that complainant is entitled to recover the amount, as alleged in the complaint. The answering OP prayed for the dismissal of the complaint.
5. OP no.3 filed its separate written reply by raising legal objections that complaint is not maintainable and complainant has no cause of action to file the complaint. Jurisdiction of Consumer Forum was questioned. It was denied that complainant is consumer of OPs. Any deficiency in service on the part of OPs was vehemently denied, as complainant herself had not followed the instructions given by them. It was further alleged that compensation claimed by her is quite excessive. The insured did not comply with the terms and conditions under which the said policy was issued, so if the negligence or the claim is proved, no liability can be fastened on OP no.3. On merits; OP no.3 contested the complaint of the complainant on above referred grounds and prayed for the dismissal of the complaint.
6. OP no.4 filed its separate written reply. It denied any deficiency in service on the part of OPs. It was further pleaded that insured did not comply with the terms and conditions under the said policy. The answering OP prayed for the dismissal of the complaint.
7. The complainant tendered in evidence affidavit and documents Ex.C-1 to C-88 and closed the evidence. As against it, OP no.1 tendered in evidence affidavits Ex.R-1 and R- alongwith documents Ex.R-10 and R-13 and closed the evidence. OP no.2 First Appeal No.316 of 2013 13 tendered in evidence affidavit and document Ex.R-3 and R-4. OP no.3 tendered in evidence affidavit Ex.R-2 and closed the evidence. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant, as referred to above. Dissatisfied with the order of the District Forum Bathinda; three above referred separate appeals have been preferred against the same.
8. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. Evidence on the record needs to be adverted to by us for adjudication of the matter. The pleadings of the parties have been considered by us carefully. Affidavit of Arti complainant is Ex.C-1 on the record in support of her version, as contained in complaint. Ex.C-2 is the report of Scanning Centre dated 26.04.2011 and opinion is recorded in it as acute cholicystitis with cholilithiasis. Ex.C- 3 is the scanning report of complainant dated 20.11.2011 recording opinion of Chronic Chlicystitis with cholilithiasis. Ex.C-4 is the copy of report of electrocardiogram of complainant dated 11.01.2012. Ex.C-5 is the copy of prescription slip in the name of complainant by OP no.1 hospital. Ex.C-6 is another scanning report dated 15.01.2012 of complainant and opinion is recorded as normal study. Ex.C-7 is the copy of ERCP report with conclusion of CB leak, stenting done. Ex.C-8 is the copy of ultrasound report of complainant done by Poineer Imaging & Diagnositics recording the opinion that small loculated collections GB fossa and pelvis, CBD stent in situ. A sol First Appeal No.316 of 2013 14 with calcification in segment V of right lobe of liver? Calcified hydatid cyst. Ex.C-9 and C-10 are receipt for payment. Ex.C-11 is the report of X-ray by Poineer Imaging & Diagnositics. Ex.C-12 is the copy of reference slip to PGI Chandigarh issued by OP no.2. Ex.C-13 is the copy of CT scan report of complainant dated 03.02.2012 recording the impression as distal small gut obstruction-? Adhesions, Mild Ascites, Masenteric lymphadenopathy. Ex.C-14 is copy of discharge summary of complainant issued by DMC Ludhiana showing the date of admission as 02.02.2012 and date of discharge as 11.02.2012 recording the diagnosis status as Cholycustectomy with CBD leak with Post ERCP with Intestinal obstruction. The complainant was treated by Dr. Satpal Singh department of Gastrosurgery. Ex.C-16 is the copy of CT report dated 11.03.2012 issued by DMC Ludhiana. Ex.C-17 to C-27 are copies of bills of medicines and charges by DMC Ludhiana. Ex.C-28 is the supplementary affidavit of complainant stating the negligence on the part of OPs no.1 and 2 in conducting her procedure in a negligent manner. Affidavit of her husband Balwinder is Ex.C-29 on the record in support of version of complainant. Ex.C-30 to C-88 are the copies of lab report and bills for purchasing the medicines. Ex.C-53 is the affidavit of Dr. Manohar Swami on the record regarding medical negligence on the part of OPs.
9. OP no.1 placed reliance upon affidavit of Dr. Sanjay Kumar Garg Ex.R-1 on the record. He denied any medical negligence on his part. He stated that he is a qualified and First Appeal No.316 of 2013 15 experienced doctor. He admitted that he has done the procedure on complainant for removal of stones in gallbladder of complainant as per medical standard practice and the procedure too with due care and caution. Ex.R-2 is the affidavit Sh.J.R. Sharma, Senior Divisional Manager of OP no.3. This witness denied any medical negligence on the part of OP no.1, the treating doctor. Ex.R-3 is the affidavit of Dr. Gagandeep Goyal OP no.2. He stated in his affidavit that complainant is not the consumer of OP. He reiterated the version on oath, as pleaded in his written reply and denied any medical negligence on his part. Ex.R-4 is the copy of certificate of OP no.2 that he has done MD(Medicine) from Govt. Medical College, Amritsar and this certificate was issued by Baba Farid University of Health Sciences. OP no.2 secured 479 marks out of total number
800. Ex.R-5 is the copy of renewal certificate of OP no.2. Ex.R-6 is the copy of character certificate of OP no.2 issued by Government Medical College Amritsar. Ex.R-7 is the copy of certificate of registration of OP no.2 issued by Punjab Medical Coucil. Ex.R-8 is the copy of certificate issued by Baba Farid University of Health Sciences in the name of complainant that he has secured 440 marks out of 800 marks. Ex.R-9 is the affidavit of Dr. Sat Pal Singh Virk, M.S. M.Ch. (Gastro), Professor and Head Surgical Gastroenterology Department, DMC Ludhiana. It is stated in his affidavit that complainant was admitted in DMC Hospital on 02.02.2012 with pain in abdomen and abdominal distension for six day and vomiting for three days. The complainant had laparoscopic cholecystectomy First Appeal No.316 of 2013 16 three weeks back following which she had minor billary leak, for which ERCP and CBD stenting was one three weeks back. He further deposed that complainant was checked up by him and she was diagnosed as patient of acute intestinal obstruction and exploratory laparotomy was done. This witness further deposed that in small number of cases of laproscopic cholecystectomy, billary leak can occur for which the treatment is ERCP and CBD stenting. Ex.R- 10 is the copy of policy schedule. Ex.R-11 is the copy of attendance certificate in the 4th asia pacific conference of minimally invasive surgery of OP no.1 issued by Endosurgery 199. Ex.R-12 is copy of certificate of master of surgery of OP no.1 issued Mangalore University. Ex.R-13 is copy of membership certificate of OP no.1 issued by Indian Association of Gastrointestinal Endo-Surgeons. Ex.R-14 is the affidavit of Balwinder Singh Divisional Manager of OP no.4. This witness denied any medical negligence on the part of OP no.2.
10. From perusal of above referred evidence on the record, we find that OPs no.1 and 2 are qualified surgeons, it cannot be said that they are unqualified surgeons persons and were not competent to handle the procedure. They were qualified persons to conduct above procedure and they were conferred the degrees by the Universities for this purpose. We repel the submission of the complainant that they were inept and inefficient and were not competent surgeons to conduct the procedure in this case. First Appeal No.316 of 2013 17
11. The next point is that what is the medical negligence committed by OPs no.1 and 2 in this case. We find that while conducting laparoscopic surgery for gallbladder of complainant, the CBD injury occurred in this case which led to bile leakage. The only course open as per medical standard practice to prevent the bile leakage is through ERCP and stenting. This procedure has rightly performed by OP no.2 in this case, it cannot be said that OP no.2 deviated from the medical standard practice and was incompetent doctor to handle the case. The CBD injury is a known complication in above procedure. The matter is not resintegra. The National Commission has examined this point in case "Tilat Chaudhary and another Vs. All India Institute of Medical Sciences and another"
IV(2012)CPJ-610(NC) that CBD injury is a well known complication of laparoscopic cholecystectomy procedure (LCP). It must be presumed that incidence of CBD injury is a well known risk, when patient undergoes LCP. Same cannot be correlated as the act of negligence or carelessness on part of operating surgeon. We rely upon law laid down by the Supreme Court of India in "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 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 free from any complications, when they performed their duty with reasonable skill according to medical standard practice and they are First Appeal No.316 of 2013 18 qualified in that matter and hence they cannot be held medically negligent. As per dictum of the National Commission in "Tilat Chaudhary and another Vs. All India Institute of Medical Sciences and another" case (supra) that CBD injury is a well known complication of laparoscopic cholecystectomy procedure (LCP). It must be presumed that incidence of CBD injury is a well known risk; when patient undergoes LCP. Same cannot be correlated as the act of negligence or carelessness on part of operating surgeon. Since, CBD injury is known complication hence OP no.1 cannot be said to be medically negligent in this case as OPs no.1 and 2 were duly qualified and experienced doctors. There is no rebuttal evidence by the complainant that OPs no.1 and 2 had not requisite experience in above surgery and in putting the stent to prevent the bile leakage respectively. Mere occurrence of some known complication cannot be said to be medical negligence in our opinion. No doctor can assure recovery to any patient. A doctor if qualified and followed the standard medical procedure in treating the patient cannot be said to be medically negligent. The District Forum wrongly held OP no.2 to be medically negligent simply on account of some complication as known complication do occur in the procedures. If standard medical practice has been followed in the procedure; then doctor cannot be said to be medically negligent. The District Forum has not appreciated the facts of the case in proper perspective. The order of District Forum cannot be sustained in this appeal, being unsustainable and erroneous.First Appeal No.316 of 2013 19
12. As a corollary of our above discussion, we hold that no medical negligence or deficient service on the part of OPs no.1 and 2 has been established in this case by the complainant. Consequently, we accept appeal no.316 of 2013 filed by OP no.2 and also accept first appeal no.324 of 2013 filed by OP no.4 and set aside the order of the District Forum Bathinda dated 28.01.2013. We dismiss the first appeal no.323 of 2013 filed by the complainant for enhancement of amount of compensation resulting into dismissal of the complaint filed before District Forum.
13. The appellant of first appeal no.316 of 2013 had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount alongwith interest, which accrued thereon, if any, be remitted by the Registry to the appellant of this appeal by way of a crossed cheque/demand draft after the expiry of 45 days.
14. The appellant of first appeal no.324 of 2013 had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount alongwith interest, which accrued thereon, if any, be remitted by the Registry to the appellant of this appeal by way of a crossed cheque/demand draft after the expiry of 45 days.
15. Arguments in above referred appeals were heard on 03.05.2016 and the orders were reserved. Copies of the orders be communicated to the parties as per rules. The appeals could not be First Appeal No.316 of 2013 20 decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (J.S. GILL) MEMBER May 05, 2016 (MM)