State Consumer Disputes Redressal Commission
Kiran Hospital vs Pooja Verma on 17 April, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.186 of 2015
Date of Institution: 16.02.2015
Order reserved on:10.04.2017
Date of Decision : 17.04.2017
1. Kiran Hospital, Gill Road, Opposite Jaimal Road, Janta Nagar,
Ludhiana through its Proprietor Dr. Tarlochan Singh.
2. Dr. Tarlochan Singh owner of Kiran Hospital, Gill Road,
Opposite Jaimal Road, Janta Nagar, Ludhiana.
.....Appellants/opposite parties
Versus
Pooja Verma W/o Sh. Deepak Verma resident of 10792, Street
No.10, Kot Mangal Singh, Near Shiv Shakti Mandir, Ludhiana.
.....Respondent/complainant
Appeal against order dated 22.12.2014
passed by the District Consumer
Disputes Redressal Forum, Ludhiana.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the appellants : Sh. N.K. Vadehra, Advocate
For the respondent : Sh. Hitesh Sood, Advocate
............................................ J. S. KLAR, PRESIDING JUDICIAL MEMBER :-
The appellants have directed this appeal against order of District Consumer Disputes Redressal Forum Ludhiana dated 22.12.2014 (in short the 'District Forum'), vide which, the complaint of the complainant was partly allowed by directing OPs to pay Rs.1,50,000/- as compensation to the complainant. The appellants of this appeal are the opposite parties and the respondent of this appeal is the complainant before the District Forum in the original First Appeal No.186 of 2015 2 complaint and they be referred as such hereinafter for the sake of convenience.
2. Complainant Pooja Verma instituted complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that she received follow up treatment from OP no.1 hospital, a month prior to her delivery. She was admitted in OP no.1 hospital in the morning on 07.10.2011 and she delivered a child through cesarean operation thereat. She was discharged from OP no.1 hospital on 11.10.2011 against charges of Rs.19,000/- for her entire delivery process. She complained of pain in her lower abdomen near the stitches after three days therefrom. She approached OP no.1 hospital about her abdominal pain problem, where doctor told her that it was routine pain and it would be alright within few days. Her pain started increasing instead of subsidizing. She visited OP no.1 hospital on 19.10.2011, where she was given some pain killers by doctors of OP no.1. She got some doubt in her mind and went to Krishna Hospital Ludhiana for further consultation. Her ultrasound was done by the doctor and it was found that there was something wrong in her reports and asked her to go to some advanced hospital. She went to Deep Hospital Ludhiana, where same thing happened and they referred her to CMC Hospital Ludhiana for further treatment, as her condition was not good. She was taken to CMC Hospital Ludhiana by her husband on 20.10.2011 with severe pain in her abdomen and her condition was worse. Investigations and tests were carried out on her in the next 2-3 days in CMC Hospital, where it was found that she had presence of some First Appeal No.186 of 2015 3 abdomino pelvic collections in her uterus. A heterogenous echotexture area with hyperechoic foci was noted in lower uterine segment, s/o post operation changes. A well defined heterogenous echotexture collections with internal septations measuring approx. 10.8cmx6.6cm and having an approx. volume of 350 cc-400cc was noted in lower abdomen and pelvis, anterior of uterus. There was presence of blood mass in the uterus, which collected there due to negligence by OPs during her operation. There was infection and puss near stitches in lower uterus. OP no.2 Dr. Tarlochan Singh stole the previous record of scan and MRI of the complainant, when he visited the complainant at CMC hospital. Matter was reported to Civil Surgeon Ludhiana. Enquiry was conducted by Civil Surgeon, and vide his report no.637-38 dated 30.08.2012, negligence was found on the part of OP no.1 hospital. OP no.1 and its doctors were negligent in conducting her cesarean operation. Consequently, she had to spend Rs.3,50,000/- on her treatment in CMC Hospital and Rs.19,000/- in Kiran Hospital OP no.1. She spent Rs.50,000/- on miscellaneous expenses. She suffered mental harassment as well. She filed the complaint against OPs praying that they be directed to pay her the amount of Rs.4 lakhs incurred on her treatment at CMC Hospital; further to pay Rs.10 lakhs as compensation for mental harassment for medical negligence of OPs; and Rs.11,000/- as litigation expenses.
3. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred that on 07.10.2011 at 6 AM, complainant was got admitted First Appeal No.186 of 2015 4 by her husband at full terms amenorrhea with labour pain in OP no.1 hospital. Routine tests were carried out and there was meconium staining in the afternoon on that very day and emergency LSCS had to be done. There were no preoperative or postoperative complications in the procedure of complainant. Patient was taking orally, walking normally, passing urine and stool, dressing was healthy. Patient was asked to arrange two units of blood, as the HB of the patient was 7gms. Husband of complainant refused to arrange blood and was not buying medicines, as prescribed by the OPs. Her husband insisted upon her discharge and to waive off the remaining amount of Rs.8000/- payable to OPs out of Rs.19,000/-. The complainant was advised not to get her discharge, as she further required 3-4 more days for her appropriate treatment. On insistence of complainant side, that care would be taken of the patient by giving medicines on time, OPs allowed to discharge the complainant, as she left against medical advice (LAMA) on humanitarian ground waiving outstanding amount of Rs.8000/-. There might be delay in wound healing because every person has different immunity etc., which fact was explained to the patient as well as to her husband in simple language by OPs and complainant signed on the said writing, which was witnessed by Deepak Verma her husband. After four days therefrom, complainant again visited the hospital of OP no.1 alongwith her husband with complaint of pain in her abdomen. She was examined by OP no.1, as she was looking pale, abdomen soft and she was passing stool and urine. The concerned gynecologist performed blood test and ultrasound, Hb of the patient was 7gms, First Appeal No.186 of 2015 5 TLC was 13000. Ultrasound was done by Dr. Tarlochan Singh, OP no.2, which revealed a pelvic mass 3 cm x 2.5 cm anterior to the uterus, which required MRI to find out the exact origin of the mass. The patient was referred to DMC Hospital Ludhiana for MRI pelvis, blood transfusion, IV antibiotic etc., the patient was reluctant to go to DMC Hospital Ludhiana on that night. Since, the complainant stated that it was too late on that night hence she was admitted by giving one shot of injection of pipracillin and tazobactum 4.5. gms in I.V. infusion to prevent further septicemia, as her TLC was raised, on the express commitment of complainant that she would go to DMC Hospital on next coming day. Instead of getting herself admitted in DMC Hospital Ludhiana, she went to Krishna Hospital Ludhiana on her own accord against the advice of OPs. Her ultrasound was again performed thereat and she was referred to Deep Hospital Ludhiana. The doctor of Deep Hospital after examining the complainant advised her MRI from Ace Diagnostics Centre, Ferozepur Road, Ludhiana and report of MRI clearly showed that bulky uterus and hemorrhagic collection in uterovesical pouch in peritoneal cavity B/L Fornices. The doctor of Deep Hospital after examining the MRI report, referred her to CMC Hospital Ludhiana, which is an advanced institute. The complainant had not followed by the advice of OPs due to her own negligence. Had there been any negligence on the part of OPs, the patient would have kept on bleeding from the stitching line of uterus, from where the baby was delivered during operation (LSCS), which could result in drop in blood pressure, i.e. shock within few hours after the surgery and needed to be re-operated First Appeal No.186 of 2015 6 immediately within few hours, but in this case, there was no such complication during or after five days postoperative stay in Kiran Hospital of the OPs and 8 days prior to admission in the CMC Hospital, Ludhiana i.e. on 20.10.2011. It is settled principle that before closing the abdomen, stitch line is observed and abdomen was closed only when there was proper homeostasis (no bleeding at the site). Postoperative hematoma can occur because of infection, anemia, in case of rupture of membranes as in this case. The OPs contested the complaint of the complainant on the above averments and prayed for dismissal of complaint by denying any medical negligence on their part.
4. The complainant tendered in evidence affidavits Ex.C-A and C-B with copies of documents Ex.C-1 to C-24 and closed the evidence. As against it, OPs tendered in evidence affidavits Ex.R-A, R-B and R-C with documents Ex.R-1 to Ex.R-11 and closed the evidence. On conclusion of evidence and arguments, the District Forum partly allowed the complaint of the complainant. Aggrieved by above order, the OPs, now appellants, have preferred this appeal against the same.
5. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The District Forum held OPs negligent only on one count that they were not having blood bank with them amounting to deficiency in service on their part, particularly in case of cesarean operation. It was also held that OPs failed to assess the problem of complainant when she visited them second time, later on referring her to some First Appeal No.186 of 2015 7 other hospital. The OPs challenged the findings of the District Forum by preferring this appeal.
6. Hearing the respective submissions of counsel for the parties and from perusal of evidence on the record, we proceed to adjudicate the matter in dispute in this case. The complainant filed her affidavit Ex.C-A on the record in support of her averments that OPs are negligent for the above said reason. She stated that she complained of pain in her lower abdomen near stitches after her cesarean operation. She approached OPs with complaint of pain, but OPs had not treated her properly. She further stated that she suffered the above problem due to medical negligence of the OPs, by not properly conducting the cesarean operation and wrongly treating her. She further stated that OP no.2 stole the report of scan and MRI report of complainant. Ex.C-1 is the letter of Civil Surgeon Ludhiana addressed to OP no.1 and Deepak Verma to join the enquiry. Ex.C-2 is the letter of investigating officer to Civil Surgeon Ludhiana. Ex.C-3 is the prescription slip dated 11.10.2011 issued by OP no.2 hospital. Ex.C-4 to C-8 are the receipts of payments made by the complainant. Ex.C-9 is the estimate dated 11.10.2011 of Rs.19,000/-. Ex.C-10 is the report of CMC Hospital Ludhiana dated 19.01.2012. This report is reproduced as under:
"This is to certify that Mrs Pooja, hospital file unit number C- 7344535, 25 year old lady was admitted as a case (post LSCS day-2), on 20.10.2011 in Christian Medical College and Hospital Ludhiana with complaints of fever, anemia for 2 days. Outside MRI showed bulky uteus and First Appeal No.186 of 2015 8 haemorrhagic collection in uterovesical pouch in peritoneal cavity B/L Fornices. Patient was admitted and started on IV antibiotics. 3 units of packed red blood cells were transfused. MRI films were reviewed. Repeat USG abdomen and pelvis revealed hepatosplenomegaly and abdomino pelvic collection suggestive of haematoma. Collection had an approx. volume of 40 cc. In view of above findings, patient was taken up exploratory laparotomy on 24.10.2011. Around 400 gms of clots and 300 ml blood was removed from peritoneal cavity. Minimal infected bits of placenta removed from uterine cavity. Following surgery 2 units of packed red blood cells were transfused. She was continued on IV antibiotics and routine post operative care was given. Suture removal done on 14th post operative day. She was discharged on request on 12.11.2011 in satisfactory condition."
Ex.C-11 is the report of MRI abdomen and pelvis dated 20.10.2011 showing that there was a large heterogeneous collection appearing predominantly hypertense on T2W/Stir images and hypointense on T1W images with few areas of blooming on GRE suggestive of hemorrhagic component seen to communicate through this defect with endometrial cavity and extending anteriorly into the vesico- uterine pouch, displacing the bladder anteriorly and inferiorly. Bulky uterus with a defect in the anterior wall of lower uterine segment and large collection with hemorrhagic component in vesico-uterine pouch extending into bilateral Fornices and peritoneal cavity as described. Ex.C-12 to C-15 are the correspondence of senior Medical Officer. First Appeal No.186 of 2015 9 Record of treatment of complainant at CMC Hospital is Ex.C-16 on the record. Similarly, we have also considered the other documents on the record Ex.C-18 to C-24 on the record. Ex.C-B is the affidavit of Karam Singh son of Gulzar Singh in support of averments of complainant.
7. OPs mainly relied upon affidavit of Dr. Tarlochan Singh OP no.2 in this case. He denied any medical negligence in the treatment of complainant on the part of OPs. He stated that on 07.10.2011 at 6 AM, complainant was got admitted by her husband at full terms amenorrhea with labour pain in OP no.1 hospital. Routine tests were carried out and there was meconium staining in the afternoon on that very day and emergency LSCS had to be done. This witness denied any preoperative or postoperative complications. He further stated that patient was taking orally, walking normally, passing urine and stool, dressing was healthy. Patient was asked to arrange two units of blood, as the HB of the patient was 7gms. Husband of complainant refused to arrange blood and was not buying medicines, as prescribed by the OPs. Her husband insisted upon her discharge and to waive off the remaining amount of Rs.8000/- payable by complainant to OPs out of Rs.19,000/-. The complainant was advised not to get her discharge, as she further required 3-4 more days stay in the hospital for her treatment. On insistence of complainant side that due care would be taken of the patient by giving medicines on time, OPs allowed to discharge her as, left against medical advice (LAMA). Affidavit of Dr. Jaskiran Kaur, M.D. (Gynae & Obst.) is Ex.R-B on the record. She First Appeal No.186 of 2015 10 deposed that she is a qualified gynecologist and has been working in OP no.1 hospital for the last 20 years. She denied any medical negligence on the part of OPs in this case in the case of complainant. This witness further stated that complainant herself and her family members failed to comply with the directions and instructions given by the deponent at the time of leaving the hospital against medical advice (LAMA) and complainant concealed this fact from the Forum intentionally and dishonestly. She also deposed in her statement that complainant required 3-4 days more of hospitalization in OP no.1 hospital for her proper treatment, but husband of complainant remained adamant on her discharge. This witness further stated that her parameters were stable, when she was admitted in CMC hospital. Ex.R-1 is the renewal certificate (under the Punjab Medical Registration Act II of 1916) of Dr. Jaskiran Kaur. Ex.R-2 is the hematology report dated 10.10.2011 of complainant. Ex.R-3 is the treatment sheet of complainant prepared by OP no.1 Hospital. Ex.R-4 is the hand-writing of husband of complainant regarding, 'left the hospital of OP no.1'. Ex.R-5 is the consent letter and Ex.R-6 is another consent letter by the complainants. OPs also relied upon affidavit of Dr. Kanwaljit Kaur Ex.R-C on the record. She deposed that no medical negligence is involved in this case on the part of OPs. Ex.R-7 is the copy of certificate of Dr. Kanwaljit regarding her speciality in obstetrics and gynecology. Ex.R-8 is the registration certificate of Dr. Kanwaljit by Punjab State Medical Council. Ex.R-9 and R-10 are the medical First Appeal No.186 of 2015 11 literatures adduced by the OPs on the record on the subject in dispute.
8. From discussion of above referred evidence on the record and hearing the arguments of counsel for the parties, we find that the District Forum has not reached correct conclusion in this case. Dr. Jaskiran Kaur deposed in her affidavit Ex.R-B that complainant was treated properly and on her insistence, she was discharged against LAMA on 12.10.2011. She was explained the risks regarding healing the wound. The OPs referred her to DMC Hospital keeping in view her condition, which is an advance hospital. The complainant of her own went to Krishna Hospital Ludhiana and then to Deep Hospital Ludhiana against medical advice tendered by OP. She was further referred her to CMC Hospital Ludhiana for further treatment from Deep Hospital. Referring the patient to a higher centre for proper treatment is not medical negligence in our view. The doctors of OPs were qualified and competent persons, who conducted her surgery. There is nothing on the record that doctors were not qualified in their fields. The onus is on the complainant to prove medical negligence. There is mere affidavits of complainant and her husband on the record to this effect, because even there is no report of expert medical board finding any medical negligence in this case of OP. Mere enquiry officer's report, which is not by an expert body of doctors holds no field, when there is no such affidavit of enquiry officer on the record. Even from the perusal of MRI report Ex.C-11, it is recorded free fluid is noted in pelvis, subcutaneous edema is noted along the scar. No evidence of any First Appeal No.186 of 2015 12 rectus sheath, hematoma is noted. On the next point that OPs were not equipped with blood bank, the complainant approached them post operatively, we find that no such surgical procedure was carried by the OPs on her at that stage and rather complainant was referred to DMC Hospital and complainant had not followed the advice of OPs. The complainant also left the hospital of OPs against medical advice and sought her discharge from OP no.1 hospital unilaterly. The National Commission has held in case "Anju Sharma & another Vs. Dr. D. Sinha and others" IV(2011)CPJ-268(NC) that medical centre not equipped with facilities like ventilators, etc. and not in a position to treat the patient of MT Malaria. This is no medical negligence. Primary health care with basic medical facilities supported by availability of a hierarchy of higher levels of medical treatment in appropriate cases is generally accepted model of public health facilities. It is so held as no ground for holding the hospital medically negligent by the National Commission on this point.
The medical literature cited has been cited on the record by the OPs, vide Ex.R-9 and R-10 and it has proved that hemorrhage and haematoma are the complications and risk factors of cesarean section following gynecologic surgery, hence we are unable to find any medical negligence on the part of OPs in this case. Perusal of the medical literature on the record by us proves that hemorrhage and haematoma are known complications of cesarean surgery. The complainant could not prove it on the record that OPs followed that treatment, which was not acceptable to First Appeal No.186 of 2015 13 medical protocol. The Apex Court has held in "Kusum Sharma & others Vs. Batra Hospital & Medical Research Centre & others"
2010 (2) CTC-461 that a surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient. Certain guidelines were laid down by the Supreme Court in this authority to find out medical negligence on the part of doctors. We find that the OPs are duly qualified doctors with requisite experience and they have followed the procedure, as acceptable to the medical standard practice and even the medical literatures also proves it on the record that hemorrhage and haematoma are the known complications of the gynecology surgery. There is no expert medical body's report on the record produced by the complainant to establish any medical negligence on the part of OPs. There is nothing on the record that OPs have not exercised the reasonable degree of skill or knowledge possessed by them was inadequate, while treating the complainant. Simply because the patient had not responded to a particular surgery, a doctor cannot be held liable therefor on that count. A doctor cannot guarantee the cure of the patient, as it lies in the hand of almighty. There is nothing on the record to prove this fact that the condition of the complainant worsened due to the treatment given by the OPs, which was against medical standard practice or OPs were not qualified in their field. We also rely upon law laid down by the Supreme Court of India in "Jacob Mathew Vs. State of Punjab" 2005(2) CPC-515(SC) in this regard. The complainant could not prove it on the record that there was particular duty cast First Appeal No.186 of 2015 14 upon OPs and they have failed to discharge the same. The onus is on the complainant to prove as to what is the particular medical negligence on the part of OPs. The Apex Court has held in "Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and others"
2009(3)CPJ-17 that no guarantee is given by any doctor or surgeon that the patient could be cured. A doctor should take a reasonable and fair degree of skill only, which may not be a higher skill. A doctor is not magician for curing the patient with his magic-wand.
9. In view of our above discussion, we hold that OPs are qualified doctors and performed procedure in accordance with settled medical practice and protocol, which is acceptable to the medical fraternity and medical literature. A doctor never guarantees to cure a patient. There is nothing on the record to prove that OPs failed to exercise the reasonable and fair degree of care in the treatment of the complainant. Consequently, the order passed by the District Forum is held to be erroneous and is ordered to be reversed in this appeal.
10. As a result of our above discussion, we accept the appeal of the appellants by setting aside the order of the District Forum under challenge in this appeal. Resultantly, the complaint of the complainant stands dismissed.
11. The appellants 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 appellants of this appeal by way of a crossed First Appeal No.186 of 2015 15 cheque/demand draft after the expiry of 45 days provided there is no stay order by the higher Forum.
12. Arguments in this appeal were heard on 10.04.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
13. 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 April 17, 2017 MM