State Consumer Disputes Redressal Commission
Kamal Sharma vs Dr. U.S. Dhaliwal Hospital on 11 May, 2017
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.320 of 2016 Date of Institution: 18.04.2016 Order Reserved on : 08.05.2017 Date of Decision : 11.05.2017 Kamal Sharma son of Sh. Parmod Chander Sharma, aged 37 years, resident of 211- Shivala Colony, Near Shivala Bhayian, Amritsar Punjab. Appellant/Complainant Versus 1. Dr. U.S Dhaliwal of Dhaliwal Hospital, 3 Batala Road, Amritsar, Punjab. 2. Dhaliwal Hospital, through its Proprietor/Partner/Officer Incharge Dr.U.S Dhaliwal, 3 Batala Road, Amritsar, Punjab. 3. United India Insurance Company, through its office incharge, Janpath Connaught Palace, New Delhi. Respondents/Opposite parties First Appeal against order dated 10.03.2016 passed by the District Consumer Disputes Redressal Forum, Amritsar. Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Smt.Surinder Pal Kaur, Member Present:-
For appellant : Sh. Randeep Singh, Advocate For respondent no.1&2: Sh.Mukand Gupta, Advocate For respondent no.3 : Sh. Munish Goel, Advocate : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant has directed this appeal against order dated 10.03.2016 of District Forum Amritsar, dismissing the complaint of the appellant. The respondents of this appeal are the opposite parties in the original complaint before District Forum Amritsar and appellant of this appeal is the complainant in the original complaint and they be referred as such, hereinafter for the sake of convenience.
2. The complainant has filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he was suffering from pain in upper abdomen in the month of March 2013 and he approached his family doctor for treatment for which he got conducted x-ray, chest PA from Bharat X-ray Clinic Amritsar. Thereafter, he approached the OP/Hospital on 06.03.2013, where he was checked by OP no.1. After checking, OP no.1 advised him to get ultrasound from Dhillon Ultra Sound Scan Centre Amritsar and other clinical examinations and tests from Bharat Diagnostic Centre Amritsar, which were got done by the complainant. On the basis of ultrasound report, as well as, other clinical tests reports, OP no.1 diagnosed a calculus of 22 mm size in the gall bladder of the complainant and recommended Button Hole Surgery to remove the stone. On the assurance of OP no.1, complainant was admitted in OP no.2 hospital on 08.03.2013 and OP no.1/Dr. U.S Dhaliwal and his team conducted the Button Hole Surgery of the complainant. But after operation, complainant was feeling pain in his abdomen and visited to OP no.1, he was assured that pain would not exist after fourth day of the operation. But even on 3th and 4th day from operation, the complainant was feeling severe pain in his abdomen and whenever he approached OP no.1 and made complaint, he did not bother to give proper checkup; rather gave pain killer tablets and injections. He alleged that OP claimed his hospital as ISO 9001-2008 certified hospital, but there were no facilities of certified hospital. He was discharged from the hospital on 12.03.2013, when he was still suffering from severe pain in his abdomen. The complainant could not recover from pain and his condition became more critical. He went to OPs hospital on 16.03.2013 and he was again admitted in their hospital and started treatment and given some medicines. On 16.03.2013 and 18.03.2013 some lab tests were conducted on him on the advice of OP no.1. When there was no recovery from pain, OP no.1 referred him to Amrit Diagnostic Centre Amritsar on 18.03.2013 for ultrasound, which was got conducted. He alleged that on account of collection of fluid and wrong treatment, he was affected by jaundice. Again on 19.03.2103, he was referred to Nijjar Scan and Diagnostic Center Amritsar for MRI of abdomen with MRPC and the MRI was got conducted on him. After receipt of MRI report, he was referred to DMC Ludhiana in ambulance of OP having no facility of oxygen and without attendant doctor. OP no.1 issued reference slip without disclosing cuts in CBD and liver which occurred during the Button Hole Surgery. In his report, OP no.1 has wrongly mentioned that source of fluid could not be definitely made out and reported that CBD Gastic duct were found to be normal. He remained admitted for two times in the hospital of OPs for which they have charged Rs.80,000/- in cash without issuing any bill/cash memo. When complainant's attendants demanded bills/cash memos, OPs flatly refused to issue the same. He further alleged that during the period from 06.03.2013 to 20.03.2013, he incurred approximately Rs.40,000/- on ultrasound, MRI and many other tests and medicines. He also remained admitted in DMC Ludhiana on 20.03.2013; as referred to by OP no.1, due to negligence of operating doctor during operation by Button Hole Surgery and incurred Rs.84,278/- on his medical treatment at DMC Ludhiana against bill no. 201321512. After discharge from DMC Ludhiana on 28.03.2013, he could not recover and again approached DMC Hospital Ludhiana on 1.05.2013 and they again admitted him in the hospital. The complainant was again operated and treatment was given and was discharged on 18.05.2013 and he again incurred Rs.42,617/- on his treatment. He is totally on bed after discharge and so many problems have developed due to negligent treatment of OPs. He alleged that on his treatment, he has spent Rs.6,01,895/- for the period from 06.03.2013 to 18.05.2013, which includes Rs.80,000/- charged by the OPs, Rs.45,000/- on tests, ultrasound, MRI and medicines, Rs.1,26,895/- charged by DMC Ludhiana for two times, Rs.3,50,000/- on medicines, tests, ultrasound etc at DMC Ludhiana. The complainant has, thus, filed complaint directing the OPs to pay the compensation of amount of Rs.19 lac for medical negligence including expenses of Rs.6,01,895/- along with interest @ 12% p.a and litigation expenses.
3. Upon notice, OPs no.1 and 2 appeared and filed written reply and contested the claim of the complainant. This fact was admitted by OPs that complainant approached them on 06.03.2013 with complaint of pain in his abdomen. After through clinical examination, he was diagnosed as having acute cholecystitis. He was advised surgical treatment for this problem in the form of cholecystectomy. OP no.1 explained three common surgical options, in the form of small incision open cholecystectomy also called Button Hole Cholecystectomy, laproscopic cholecystectomy and standard open cholecystectomy along with their complications and other limitations. On 08.03.2013; he came and opted for small incision open cholecystectomy/button hole cholecystectomy. Thereafter, he signed the well informed consent and was examined by the medical specialist Dr. A.S Multani MD and Dr. Sukeerat Singh, MD Anesthetist. Both doctors declared him fit for surgery. When surgery was started the gall balder of the complainant was highly inflamed with friable walls. Due to unclear anatomy and due to presence of marked inflammation, the surgical dissection of the procedure was a bit difficult and required slow and careful dissection, which was uneventful. A big stone impacted at the neck region of the gall bladder, which was pressing the surrounding structures i.e. bile duct was there. All important structures in the operative area were fully identified and protected including cystic duct, cystic artery and other bile ducts. The cystic duct and cystic artery were well recognized, ligated and cut separately under vision before removing the gall bladder from its liver. After removing the gall bladder; a thorough check up and complete haemostasis was done, no bile duct was detected. The abdomen was closed in layers as per routine. The complainant was discharged on 12.03.2013 when the medical specialist and operating surgeon i.e. OP no.1 found him in a satisfactory condition and that too at the request of the complainant and attendants. On 16.03.2013 he came for check up and was having moderate pain in abdomen, so he was admitted and required treatment was given to him. Necessary investigations were done including ultrasound of abdomen by Amrit Diagnostic Centre. The report of ultrasound revealed fluid around the area of operation in the abdomen, but there was no comment on CBD due to bowel gas over it. IHBR were not dilated with no S.O.L. The exact source and nature of fluid could not be established. The MRCP of the abdomen was done on 19.03.2103 with mentioned some fluid in abdomen, but CHD/CBD and cystic duct stump were detected as normal. There was some doubt regarding visibility of the right hepatic duct, which was possible due to inflammation of the surrounding structures as was present in this case. On 20.03.2013, the attendants of the patient came to OP no.1 and wanted to take the patient to some other hospital and OP no.1 advised them to take the patient only to PGI Chandigarh or DMC Ludhiana. All the arrangements were made to send the patient to DMC Ludhiana in ambulance of OP no.1. It was denied that there was no facility of oxygen and attending doctor in the ambulance. It was denied that OP no.1 issued reference slip on hospital pad on 20.03.2013 without disclosing cuts in CBD and liver occurred during Button Hole Surgery. It was denied that in the report, OP no.1 has wrongly mentioned that source of fluid could not be definitely made out and reported that CBD Gastec duct was found to be normal. It was also denied that during the period from 06.03.2013 to 20.03.2013; the complainant had spent approximately Rs.40,000/-as he could not trace out the receipts and bills for that. It was denied that the complainant has spent Rs.3,50,000/- which include the expenses of DMC Ludhiana. It was pleaded by OPs that only 15% bile leaks were noticeable at the time of operation. Bile leak was known complication of any type of cholecystectomy procedure including MLC/BHC. Rest of the averments were controvered by OPs and they prayed for dismissal of the complaint.
4. OP no.3 appeared and filed its separate written reply and contested the complaint of the complainant vehemently. It averred that there has been no privity of contract between the complainant and OP no.3, as such complaint against OP no.3 is not legally maintainable. It was pleaded that if any liability against the hospital authorities or concerned doctor is fixed, then the insurance company would consider the same as per terms and conditions and exclusion clauses of the said policy. Rest of the averments were denied and it prayed for dismissal of the complaint.
5. The complainant tendered in evidence his affidavit Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-133. As against it; OPs no.1 and 2 tendered in evidence affidavit of Dr. Ujagar Singh Dhaliwal Ex.OP1,2/1, affidavit of expert Dr. Kuldip Singh Ex.OP1,2/2 along with copies of documents Ex.A-1 to Ex.A-25. OP no.3 tendered in evidence affidavit of Mr. Surinder Singh Divisional Manager Ex.OP-3/1 along with copy of insurance policy with terms and conditions Ex.OP-3/2. On conclusion of evidence and arguments, the District Forum Amritsar dismissed the complaint of the complainant by virtue of order dated 10.03.2016, the complainant now appellant, carried this appeal against the same.
6. We have heard learned counsel for parties at considerable length and have also examined the record of the case.
7. The pleadings and evidence on the record has been examined by us with the able assistance of counsel for the parties. Ex.C-1 proves this fact that amount of Rs.150/- was paid to Dhaliwal Hospital on 06.03.2013. The complainant was admitted in Dhaliwal Hospital of OP on 08.03.2013 and discharged on 12.03.2013. Prior to his operation of gall bladder, report of Dhillon Ultra Sound Scan Centre was taken by the complainant on 04.03.2013, vide Ex.C-3. This report has shown that the gall bladder was showing odema of its wall. A calculus of 22 mm size was noticed in the region. The wall thickness at the moment was 5mm. The common bile duct was of normal calibre and no calculus was detected in it. This report Ex.C-3 dated 04.03.2013 of ultrasound has proved this fact that complainant was suffering from calculus in the gall bladder and common bile duct was of normal calibre without any calculus in it. Cholecystectomy was conducted by means of button hole surgery by OPs in the hospital. The tests reports of the complainant with regard to his operation of gall bladder at the hospital of OPs are Ex.C-5 to Ex.C-11 taken on record from time to time. After operation, the complainant felt some pain and his ultrasound was again conducted at Amrit Diagnostic Centre on 18.03.2013 vide report Ex.C-12. This report has proved that gall bladder was not seen on account of cholecystectomy. CBD was obscured by bowel gas. There was large fluid collection of size 15x11.7 cm in the inferior recess of the lesser sac & is seen extending into the left periphepatic space & left anterior pararenal space. There was some fluid in the perisplenic space. Streak of fluid was seen in the morrions pouch. Mild free fluid was seen in pelvis. The subsequent ultrasound report conducted in Amrit Diagnostic Centre Ex.C-12 has proved that there was injury to CBD. Report from Nijjar Scan and Diagnostic Centre Ex.C-13 dated 19.03.2103 was also taken. No gall bladder was seen. Large collection was observed in the subhepatic and gastro-hepatic regions, approximately measuring 13.4x6.5 5x5.2 cm in size. Collections were also seen in both subdiaphragmatic regions, perihepatic region, both paracolic gutters, pelvis and in between the loops of gut. This document Ex.C-13 has proved that there was no damage or injury to the liver after procedure for removal of gall bladder conducted by OPs on the complainant.
8. When the pain did not subside, the complainant was referred to DMC Hospital Ludhiana by OPs. Various medicines were purchased by the complainant in this regard, vide Ex.C-16 to Ex.C-26 on the record. The discharge summary prepared by DMC College and Hospital Ludhiana Ex.C-27 is most important document on the file. This document has proved that complainant was diagnosed to be a case of past cholecystectomy and CBD injury. Cholecystectomy was carried out by means of laparoscopy. There is no liver injuries of the complainant reported in discharge summary Ex.C-27 by DMC Hospital Ludhiana. Only past cholecystectomy and CBD injury are reported for the above treatment by DMC Ludhiana. The complainant also placed on record various bills for purchase of medicines at Ludhiana, vide Ex.C-28 to Ex.C105 on the record. Ex.C-106 dated 20.03.2013 is document issued by DMC Ludhiana to the effect that the liver was normal. Large collection was seen. Anterior to stomach extending into Morison Pouch - Post Cholecystectomy collection. The collection is seen extending along the paracolic gutters into the pelvis. The treatment was provided by DMC College and Hospital Ludhiana to the complainant for repairing of CBD injury by means of drainage of bile duct.
9. To refute this evidence, Dr. Ujagar Singh Dhaliwal tendered his affidavit Ex.OP1,2/1 on the record. He stated that in the ultrasound report dated 18.03.2013 from Amrit Diagnostic Centre Amritsar, there was no comment on CBD due to bowel gas over it. IHBR were not dilated with no S.O.I. Thus, exact source and nature of fluid could not be established. MRCP of the abdomen was done on 19.03.201, which mentioned some fluid in abdomen, but CHD/CBD and Cystic duct stump were detected as normal. He deposed that DMC College and Hospital Ludhiana treated the complainant for removal of fluid. He denied any medical negligence on his part in this case. Dr. Kuldip Singh also tendered his affidavit as expert witness Ex.OP-1,2/2. He remained professional and Head of Department of Surgery DMC College and Hospital Ludhiana. He stated that Cholecystectomy operation can be done by Mini Lap Cholecystectomy/Button Hole Cholecystectomy in his own language. He stated that from perusal of record, he found some billiary leak in the operation area of the gall bladder in the abdomen. Although, CBD, cystic duct, common hepatic duct were found to be intact by ultrasound and MRCP investigations. He stated that Dr.U.S Dhaliwal is renowned surgeon. He further stated that Mini Cholecystectomy is a standard, safe surgical procedure for the removal of the gall bladder. He further deposed that complainant was rightly treated and complication of bile leak is common and accepted complication in medical literature. It has also appeared on the record that consent of the complainant was taken on 08.03.2013 by OPs before conducting the procedure. Medical literature has also been referred to on the record. The medical literature on the record shows that there are 15% of injuries to the bile duct as recognized at the time of operation. Small incision (Mini) Cholecystectomy is recognized by medical literature as placed on the record. It cannot be said that OPs acted against the Standard Medical Practice in conducting the procedure of the complainant resulting into bile duct injuries (CBD). The OPs are competent doctors and they conducted the procedure as per medical standard practice. National Commission has held in Tilat Chaudhry and another versus All India Institute of Medical Sciences and another, reported in IV (2012) CPJ 610 (NC) that CBD injury is a well known complication of laparoscopic cholecystectomy procedure (LCP). Once it is shown that due medical protocol was followed; no case of medical negligence is made out as held by National Commission in the above-referred authority. The OPs cannot be held medically negligent in case the patient does not respond favourably to the recognized medical procedure. OP Dr. U.S Dhaliwal is renowned surgeon as per record placed on the file. Above bile duct procedure is new innovative technique in medical literature. The Apex Court has held in Kusum Sharma & Others.. Vs... Batra Hospital & Medical Research Centre & Others reported in AIR 2010 Supreme Court of India 1050 that , higher the acuteness in emergency and higher the complication, more are the chances of error of judgment. A mere deviation from normal professional practice is not necessarily evidence of negligence. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable, if the course of action chosen by him was acceptable to the medical profession. Negligence is the breach of a duty exercised by omission to do something, which a reasonable man, guided by those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do. A medical practitioner would be liable only, where his conduct fell below that of the standards of a reasonably competent practitioner in his field. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. It would not be conducive to the efficiency of the medical profession, if no doctor could administer medicine without a halter round his neck. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. We, thus, hold that District Forum rightly dismissed the complaint of the complainant by virtue of order dated 10.03.2016 under challenge in this case. Once OPs are not found medical by negligent or deficient in service, hence, the complainant is not entitled to recover any compensation from OPs. The order of the District Forum is affirmed in this appeal.
10. As a result of our above discussion, finding no merit in the appeal; the same is hereby dismissed.
11. Arguments in this appeal were heard on 08.05.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER May 11, 2017 (ravi)