State Consumer Disputes Redressal Commission
Mrs. Meera Wife Of Tek Chand vs Dr. R.D. Singh, (Surgeon on 31 March, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.1580 of 2005
Date of institution : 12.12.2005
Date of decision : 31.3.2011
Mrs. Meera wife of Tek Chand, Street Number 4, Ahata Number 54, Ferozepur
Cantt.
.......Appellant
Versus
1. Dr. R.D. Singh, (Surgeon), Frances Newton Hospital, Ferozepur Cantt.
2. Frances Newton Hospital, Ferozepur through its Director Dr. Richard
David.
3. New India Assurance Co. Ltd., Malwal Road, Ferozepur City through its
Divisional Manager.
......Respondents
First Appeal against the order dated 18.10.2005 of
the District Consumer Disputes Redressal Forum,
Ferozepur.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Mr. B.S. Sekhon, Member.
Present :-
For the appellant : Shri Navneet Gautam, Advocate for Shri N.K. Manchanda, Advocate.
For respondent No.1&2:Shri Sandeep Khunger, Advocate. For respondent No.3 : Shri B.S. Taunque, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
The version of the appellant in the complaint was that she was suffering from menstrual disturbance. She opted to take the medical treatment from Frances Newton Hospital, Ferozepur respondent No.2 (in short "the respondent hospital"). On 12.1.2005 she was advised that the nature of her disease was complicated and the only solution was removal of her uterus by operation. She was also told that Dr. R.D. Singh respondent No.1 (in short "respondent doctor") First Appeal No.1580 of 2005. 2 was qualified for this purpose. Accordingly the appellant consented for operation to be conducted by respondent No.1.
2. It was further pleaded that she was admitted in the respondent hospital on 13.1.2005. She was operated. She was kept under observation and was discharged on 18.1.2005 with remarks in the discharge summary that her condition was satisfactory. She also deposited the bill amount of Rs.10,420/- with the respondent hospital. She was prescribed certain medicines and she followed the instructions.
3. It was further pleaded that after her discharge from the respondent hospital, the appellant had urine dribbling and wet clots. She immediately contacted the respondent doctor and informed her on 21.1.2005 of her medical problem. It was found that during the operation urinary bladder of the appellant had been punctured which was causing the urine dribbling. The respondent doctor assured the appellant that this medical problem was consequential to her operation. Therefore it would be taken care of by the respondent hospital. She was asked to come after about one and a half month from the date of operation. She was also informed that this medical problem would need another operation to be conducted by another doctor of the respondent hospital as the respondent doctor was not qualified to do it. Still the medical problem of the appellant persisted.
4. It was further pleaded that the appellant consented for her second operation on 1.3.2005. The appellant was not informed about any post operation complication. The respondent hospital demanded an amount of Rs.35,000/- from the appellant for the second operation, although she was assured all the time that second surgery would be carried out on the expenses of the respondent hospital itself. After two and a half months from the date of operation the appellant came to believe that the respondent hospital could not rectify the medical problem caused to her during the first operation. It caused severe pain, mental tension and suffering to the appellant.
First Appeal No.1580 of 2005. 3
5. It was further pleaded that thereafter the appellant contacted Dr. Atul Mittal practicing in Lajwanti Nursing Home, Jalandhar. She was told by that doctor that this complication had been caused due to medical negligence committed by the doctor who operated her in January 2005. The appellant was admitted in Lajwanti Nursing Home, Jalandhar on 20.4.2005. She was operated. She was discharged on 1.5.2005 after charging a sum of Rs.24,288/-.
6. It was further pleaded that the appellant has not only suffered the mental and physical pain because of the negligence of the respondent doctor when she was operated by him in the respondent hospital but she was also made to spend another amount of Rs.24,288/- in getting conducted her second operation. Hence the complaint for recovery of Rs.24,288/-. Rs.4,50,000/- were claimed as compensation. Costs were also prayed.
7. Respondents No.1 and 2 filed a joint written statement. It was admitted that the appellant had visited the OPD in the respondent hospital on 12.1.2005 in gynecology department. Her disease was diagnosed as menstrual problem (Polymenorrhagia). She was a known case of diabetic mellitus. It could lead to endometrial cancer. Therefore she was advised total abdominal hysterectomy with bilateral Salpingo-Oopherectomy.
8. It was further pleaded that the appellant was not referred to the respondent doctor. Rather the appellant and her relatives had themselves come to the respondent doctor for the operation of the appellant. The respondent doctor was a senior general surgeon who conducted about 50-60 operations every year in the respondent hospital successfully. The appellant was examined by the respondent doctor on 13.1.2005. She was admitted for surgery after medical checkup and after she was declared fit by the medical specialist.
9. It was pleaded that the complication of bladder injury was a very unusual complication in an uncomplicated case. Total abdominal hysterectomy with Bilateral Salpingo-Oopherectomy was performed on 14.1.2005. During the surgery it was found that the bladder was densely adherent to the previous lower First Appeal No.1580 of 2005. 4 segment caesarean section scar on uterus. During the procedure of removal of bladder, injury was duly noted and mentioned in the operation notes. The injury was immediately repaired by the standard procedure prescribed in two layers with vicryl number three zero. The husband of the appellant was informed immediately after surgery about the complication which had occurred and the events had to be awaited to observe the wound healing which in diabetic patients was questionable. The patient in such cases needed continuous catheterization for three weeks. It was duly understood by the husband of the appellant. The appellant had uneventful recovery from the surgery. She was discharged on 18.1.2005 with catheter i situ as she did not need hospitalization any more.
10. It was further pleaded that the appellant was reported in the OPD of the respondent hospital on 21.1.2005 with urinary leakage. It was due to blockage of catheter. The Foley's catheter was changed but the leakage persisted. An intravenous pyelogram x-ray was done on 2.3.2005 and the leak was found to be quite small as the bladder was feeling well and there were no uteric dilatation. The diagnosis of Vesico-naginal fistula was confirmed. The patient was referred to the urologist who examined the appellant and suggested her to wait for a period of three months for definitive repair. It was denied if the appellant had ever given any such assurance that the problem was caused due to medical negligence of the respondent doctor or that the appellant was neglected for two and a half months. It was also denied if the appellant was told that the second operation would cost her Rs.35,000/-. The billing was not done by the respondent doctor nor he had any say in any billing charges. He had not taken any money from the appellant or from her husband. At the time of operation the necessary prescription slips were issued for payment by the officials of respondent hospital.
11. It was further pleaded that the appellant was advised by the urologist of the respondent hospital to get admitted for surgery on 15.4.2005 i.e. three months after the first surgery but the appellant decided to get it operated from some other hospital. It was denied if any medical negligence was committed by the First Appeal No.1580 of 2005. 5 respondent doctor in the respondent hospital. Urinary fistula was a known complication which could occur during a gynecological surgery even as per the medical literature. Since the appellant had developed a complication, she was advised by the urologist to wait for three months before surgery was undertaken. The medical problem had occurred to the appellant due to her being diabetic. Since the appellant had two previous surgeries, therefore, the bladder was injured during surgery but it was repaired immediately. It was denied if there was any medical negligence on the part of the respondents. It is further pleaded that the respondent doctor had taken the professional indemnity insurance policy. Dismissal of the complaint was prayed.
12. The respondent Insurance Company also filed the written statement. It was admitted that the respondent doctor had taken the professional indemnity insurance policy but it was denied if any medical negligence was committed by the respondent doctor at the time of operating the appellant or if the respondent Insurance Company was liable. Dismissal of the complaint was prayed.
13. The appellant filed her affidavit dated 24.6.2005. She also produced on file the medical record and the medical bills. She also filed the medical bills of Lajwanti Nursing Home, Jalandhar.
14. On the other hand, the respondents filed the medical record of the appellant as also the professional indemnity insurance policy.
15. Learned District Forum dismissed the complaint vide impugned judgment dated 18.10.2005.
16. Hence the appeal.
17. The submission of the learned counsel for the appellant was that the respondent doctor in the respondent hospital had committed medical negligence while operating the appellant on 14.1.2005 by which the appellant was compelled to undergo second operation by spending a huge amount. She also suffered because of the medical negligence of the respondent doctor. Hence it was prayed First Appeal No.1580 of 2005. 6 that the appeal be accepted, impugned judgment dated 18.10.2005 be set aside and the appellant be awarded adequate compensation.
18. On the other hand, the submission of the learned counsel for respondents No.1 & 2 was that no medical negligence was committed by the respondent doctor when he had operated her on 14.1.2005. Since the appellant was suffering from diabetic mellitus and since she had got conducted previous two surgeries and since the bladder was densely adherent to the lower segment scar of uterus, therefore, the bladder injury was the natural consequence which was repaired by the respondent doctor at the same time and it was also so mentioned in the operation notes. It was denied if there was any medical negligence on the part of the respondent doctor. The learned counsel for respondents No.1 & 2 also submitted that the appeal be dismissed.
19. The submission of the learned counsel for the respondent Insurance Company was that the appeal be dismissed as it was without any merit.
20. Record has been perused. Submissions have been considered.
21. The admitted facts are that the appellant was suffering from menstrual disturbance. She had come in the OPD of the respondent hospital on 12.1.2005 and she was told that her disease was complicated and her medical problem could be brought to an end only by removing the uterus. In other words, she was advised total abdominal hysterectomy with Bilateral Salpingo-Oopherectomy. The appellant had got admission in the respondent hospital after she was declared fit by the medical specialist. She was checked medically by the respondent doctor on 13.1.2005 and she was operated on 14.1.2005. She was discharged on 18.1.2005. The bed-head ticket of the appellant has also been placed on the file.
22. The respondents have taken the plea that since the appellant was suffering from diabetic mellitus and since she had two surgeries and since the bladder was densely adherent to the previous lower segment scar on the uterus, therefore, the bladder injury had taken place but it was repaired immediately. It was so mentioned in the operation notes in the medical record of the appellant. First Appeal No.1580 of 2005. 7
23. Since the appellant started suffering urine dribbling, she had come to the respondent hospital. She was checked up by the urologist and she was advised to come for second operation in April 2005 i.e. after about three months from the first operation performed on 14.1.2005.
24. She had taken medical treatment from Lajwanti Nursing Home, Jalandhar where she was admitted on 20.4.2005 and was discharged on 1.5.2005. The urine dribbling was the natural consequence for the reasons stated above, therefore, the appellant has failed to prove if it was only due to the medical negligence of the respondents.
25. She has also failed to prove by documentary evidence if the respondent doctor or the respondent hospital had ever assured the appellant that she would be medically treated for the second operation free of cost. The complication of the appellant had arisen because of her own physical condition and no medical negligence can be attributed to the respondent doctor.
26. The law has been settled by the Hon'ble Supreme Court in a number of judgments that the onus to prove medical negligence is on the appellant which she has to discharge like a criminal case. The onus to prove medical negligence is onerous as it is different from proving deficiency in service which could be presumed even from the document or facts and circumstances of a case.
27. It was held by the Hon'ble Supreme Court in the judgment reported as "MALAY KUMAR GANGULY v. SUKUMAR MUKHERJEE (DR.) & ORS."
III(2009) CPJ 17 (SC) as under:-
"35. Charge of professional negligence on a medical person is a serious one as it affects his professional status and reputation and as such the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error of judgment in making a First Appeal No.1580 of 2005. 8 choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis.
28. It was held by this Commission in the judgment dated 22.1.2008 passed in First Appeal No.1038 of 2000 "Partap Singh v. Sahib Nursing Home & Surgical Centre and others" that a doctor no doubt can play havoc with the life of another by medical negligence, but the doctor cannot be dubbed as negligent wherever the things go wrong because of God's will or for other factors. Finding fault with the doctor without any evidence would not only defame the medical profession which is otherwise very noble but the society will also lose the compassion of the saviour i.e. of the doctor who is considered next to God.
29. In this context, reference can be made to the recent judgment of the Hon'ble Supreme Court reported as "Martin F. D'souza v. Mohd. Ishfaq", 2009 CTJ 352 (Supreme Court) (CP) in which the Hon'ble Supreme Court was pleased to observe as under : -
"41. A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another.
He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade." First Appeal No.1580 of 2005. 9
30. It was also held by the Hon'ble Supreme Court in Mohd. Ishfaq's case (supra) as under:-
"49.When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."
31. Keeping in view the discussion held above, we find no merit in the present appeal and the same is dismissed.
32. The arguments in this case were heard on 18.3.2011 and the order was reserved. Now, the order be communicated to the parties.
33. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(MRS. AMARPREET SHARMA)
MEMBER
March 31 , 2011 (BALDEV SINGH SEKHON)
Bansal MEMBER
First Appeal No.1580 of 2005. 10