State Consumer Disputes Redressal Commission
Smt. Prem vs Satyam Hospital Pvt. Ltd on 21 January, 2010
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b) of the Consumer Protection Act, 1986) Date of Decision : 21.01.2010 Appeal no. FA-8/515 (Appeal against the order dated 16.04.2008 passed by District Forum-V(North West Distt.) in complaint case No. 675/2005) Smt. Prem W/o Sh. Raj Singh, R/o H.NO. 503, Shahbad Daulatpur, Delhi-42. ...Appellant/complainant. through Shri M. Nageshwar, Advocate VS 1. Satyam Hospital Pvt. Ltd., 64-65A/4, Sector-16, Rohini, Delhi-85. Through its Managing Director/ Chief Medical Officer/Medical Superintendent. 2. Dr. Sapna Cally, Gyneacologost, Satyam Hospital Pvt. Ltd., 64-65A/4, Sector-16, Rohini, Delhi-85. ...Respondents/OP through Shri Sandeep Kapoor, Advocate CORAM Justice Barkat Ali Zaidi, President. M.L. Sahni, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
M.L. SAHNI, MEMBER
1. This appeal by the complainant (hereinafter referred to as the Appellant) is directed against the order dated 3.3.2008 passed in complaint case no. 675/2005 by the District Forum, V (North West ) Shalimar Bagh, Dehli dismissing the complaint of the appellant.
2. The case of Appellant, briefly stated, is that the Appellant was suffering from some uterine problem and as such she contacted the Respondent/OP-1 on 13.08.2004 for treatment of the said problem and the Respondent/OP
-2 conducted the operation on 14.08.2004. The appellant was discharged on 17.08.2004 and was advised to come up for post operative check-up on 21.08.2004. When the appellant turned up for check-up on 21.08.2004, the catheter which was placed on the appellant after operation was removed. After the removal of the catheter, the appellant started continuous dribbling of urine. The problem was reported to the Respondents on the same day. She was told that it was a routine problem which might occur to some patients in such operation. On 02.09.2004 and 10.10.2004 the appellant alongwith her husband again approached the Respondents and complained of the said problem. The Respondent No. 2 directed the appellant to deposit Rs. 25,000/-
3. The appellant therefore, went to Shrivatava Hospital, Sector-8, Rohini, Delhi on 13.10.2004 and the doctors of the said hospital disclosed to the appellant that the said operation conducted by Respondents was not successful; and that due to Vesico Veginal Fistula, the urine was dribbling continuously.
4. Thereafter, the appellant was taken to Central Hospital, Northern Railway, Basant Lane, New Delhi on 20.10.2004 where the appellant remained admitted upto 01.11.2004 and was advised to come again on 08.11.2004. The appellant was informed by the doctors of the said hospital that the appellant required implantation 5. As no uro-surgeon was available at that time in the hospital, the appellant was referred to some other Government Hospital. The appellant was taken to G.T.B. Hospital, Shahdara, Delhi on 01.12.2004 and she was admitted there on 14.12.2004. She was operated upon there on 19.01.2005, but with no improvement.
6. The appellant again visited Srivastava Hospital and was admitted there on 29.04.2004. She was operated again in the said hospital on 30.04.2005.
7. It is alleged that on account of negligence on the part of the Respondents, appellant had to undergo operation thrice without any fault on her part, and had to incur a huge sum of money on treatment, medicines, conveyance and special diet etc.
8. She prayed for directions to the OP (Respondent before us) paying a sum of Rs. 5,50,000/- as compensation.
9. Conversely, it is pleaded by the Respondents, that the appellant (complainant) was suffering from uterine prolapse and she was under the treatment at some other medical centre. She approached respondent-2 for the aforesaid problem. She was carefully examined and advised for vaginal hysterectomy, which was advised by the other centre also from where she was getting treatment. She came to respondent-1 hospital for surgery as her daughter was working with the respondent-1. The respondent no. 2 had explained the complainant about the pros and cons of the surgery in the presence of her daughter. The complainant consented for the surgery. With the consent of the complainant the surgery was performed on 14.08.2004. There was no complication in the surgery and post-operative period was uneventful. She was discharged on 17.08.2004 with foleys catheter and advised for follow-up after 8 days.
10. The complainant had never complained any problem after removal of the catheter. She again approached the respondents after 4-5 days from the date of removal of the catheter with the complaint of urge in continence, i.e. she was unable to hold her urine. She was duly examined and conservative treatment was started. The complainant was asked to come for follow up after 5 days. The complainant again came after 5 days and informed that there is improvement with the treatment given by the answering respondent. The complainant was advised to continue the same treatment for few more days alongwith haematonics.
The complainant again came after 1-1/2 months with the problem of dropping of urine. She was examined and after diagnosis Vesicovaginal Fistula was confirmed. The complainant was called on the next day and shown to the Uro Surgeon for further management. The Surgeon did Cystoscopy on the patient/complainant and the complainant was advised surgery for the repair of Vesicovaginal Fistula (VVF) and advised admission.
11. The complainant neither appeared thereafter, nor informed the answering respondent about the subsequent treatment taken by her. The Vesicovaginal Fistula is a known complication of Vaginal Hysterectomy, which is supported by several medical journals.
12. According to the Respondents, there was no negligence on their part. It is alleged that the appellant concealed the fact, that she had filed a complaint before the Delhi Medical Council against the respondents wherein the Delhi Medical Council vide its Order dated 15.5.2007 observed that no medical negligence can be attributed on the part of Dr. Sapna Cally in the treatment administered by her to the complainant
13. We have heard the Ld. Counsel for the parties and have thoughtfully considered the impugned order. We have also perused the order dated 15.05.2007 passed by Delhi Medical Council on the complaint of the Appellant alleging Medical Negligence on the part of Respondent No. 2 forwarded by the Medical Council of India, copy of which has been provided by the Respondents, while the Appellant did not make even a whisper to it in her appeal.
14. We have carefully examined the impugned order, which is well-reasoned and based on the facts and evidence provided before the Forum. Following observations of the Ld. District Forum are quite apposite to be reproduced here :
From the evidence on the record, we find that the OP no. 2, who is a qualified gynecologist, had conducted the operation with due care and skill. The complainant has to specifically prove that the medical practitioner who conducted the operation did not act with sufficient care and skill and diligence. None of these ingredients has been proved and from record, we find that OP no. 2 has conducted the operation with due care, skill and diligence and there is also nothing to suggest that vesicovaginal fistula was formed because of the operation conducted by the OP No. 2
15. While the Appellant has failed to adduce any evidence of the expert Medical authority, to prove negligence of the Respondents, the latter have relied upon the findings of the Delhi Medical Council against which there is no rebuttal by the Appellant. Rather the Appellant preferred to keep silence on this report despite its copy had been sent to the Appellant vide letter no. DMC/DC/14/2 Com. 275/2007/30517 dated 15.05.2007. The impugned order was passed on 3.3.2008.
1 6. Honble Apex Court in case of Martin F Dsouza Vs Mohd. Ishfaq , 2009 CTJ 352(SC)(CP), has observed that. Judges are not experts in medical science, rather they are laymen. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective since like in all professions and services doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence and a balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals, doctors too can make errors of judgment but if they are punished for this, no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation.
17. Since the Appellant has failed to produce any evidence from Medical Expert to substantiate her allegations of negligence on the part of the Respondents, her bald and vague averments that she was told by some hospitals that the operation performed on her was unsuccessful, do not establish her case against the Respondents. On the other hand, we find no reason to disbelieve the findings of the Delhi Medical Council. We , therefore , find no merit in this appeal and hence dismiss the same.
18. Copy of this order be provided free of cost to the parties, as per statutory requirement. Copy of this order be sent to the concerned District Forum and thereafter the file be consigned to record room.
(JUSTICE BARKAT ALI ZAIDI) PRESIDENT (M.L. SAHNI) MEMBER sk