National Consumer Disputes Redressal
Nitu Kumari & Anr. vs Dr. Vijay Kumar & Ors. on 14 October, 2024
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 939 OF 2018 1. NITU KUMARI & ANR. R/o Ibrahimpur, P.O.-Lakhanpatti, P.S.-Khodawandpur (Chhaurahi O.P), Via Gardhpura, BEGUSARAI - 848204 BIHAR 2. DR. RAM KISHORE SINGH R/o Ibrahimpur, P.O.-Lakhanpatti, P.S.-Khodawandpur (Chhaurahi O.P), Via Gardhpura, BEGUSARAI - 848204 BIHAR ...........Complainant(s) Versus 1. DR. VIJAY KUMAR & ORS. R/o Kumar Nursing Home, Station Road, P.S.-Nagar, BEGUSARAI - 851101 BIHAR 2. DR. NALINI RANJAN SINGH - ORTHOSURGEON R/o Bone & Joint Hospital-cum-Begusarai, Bari Pokhar, Pokharia, P.S-Nagar, BEGUSARAI - 851101 BIHAR 3. DR. MUKESH KUMAR - CONSULTANT REDIOLOGIST C/o Bone & Joint Hospital-cum-Begusarai Scan Centre Cum Trama Centre Cum Mediversal, at-Bari Pokhar, Pokharia, P.S- Nagar, BEGUSARAI - 851101 BIHAR 4. DR. DEEPAK KUMAR SINGH - GASTROLOGIST Add:-Endoscopy centre, N.H-31, East of Jail Gate, At-Chanakya Nagar, Mahammadpur, BEGUSARAI - 851129 BIHAR ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE MR. BHARATKUMAR PANDYA,MEMBER
FOR THE COMPLAINANT : DR. RAM KISHORE SINGH, ADVOCATE CUM C. NO. 2 FOR THE OPP. PARTY : MR. PRAVEEN KUMAR, MR. NAMAN MITTAL, ADVOCATES
Dated : 14 October 2024 ORDER
PER BHARATKUMAR PANDYA, MEMBER
1. The present complaint under Section 21(a)(i) of the Consumer Protection Act, 1986 has been filed against the opposite parties - doctors for medical negligence and deficiency in service during treatment of complainant no. 1 during her operation by OP-1 and subsequent reports Complainant No. 1 was working as block teacher before her treatment with the OPs. On 05.12.2013 for the first time complainant no. 1 went to Kumar Nursing Home of OP-1 with her husband for treatment of abdominal pain. Appendix was diagnosed by the doctor with assurance to cure it through medicines. Complainant no. 1 got relief for her abdominal pain for three months but when she again felt the same on 07.03.2014, she went to Dr. Vijay Kumar, OP-1 at Kumar Nursing Home for treatment. She was advised for surgery of appendix and was called for the same on 12.03.2014, on which date, without any pathological or radiological tests her surgery was performed within three hours of her admission in the Nursing Home. Surgery was performed by OP-1 doctor along with his OT Assistant but the cut out portion of the appendix was never shown to complainant no. 2. OP-1 doctor called complainant no. 2 after surgery informing him that the appendix and tubectomy of the complainant no. 1 was done and as there was a hole in the intestine, the same was also operated and stitched. Two days after the surgery, when complainant no. 1 developed severe abdominal pain and high fever with chills, her husband asked OP-1 to examine her thoroughly. OP-1 doctor assured him that it was normal surgical pain and surgical fever and there was nothing to worry about the same. Finally on 20.03.2014, complainant no. 1 was discharged from the Nursing home prescribing some medicines to be taken up and no other documents except medical prescription were provided to them. Complainant no. 2 again took the patient to Kumar Nursing Home on 23.03.2014 for treatment of a wound which developed in the pelvic region of the patient where the operation was done. OP-1 doctor examined her in OT and operated the wound and bandaged it. On 28.03.2014 the patient again felt abdominal pain and fever with chill but was sent back by OP-1 doctor by prescribing Zirodol tablet. However, every now and then she had to face the same pains and fever. On 10.05.2014 complainant no. 1 again felt the severe abdominal pain with nausea and vomiting and complainant no. 2 took her to Kumar Nursing Home of OP-1 for medical check-up at 8.30 PM. She was admitted in the nursing home and was administered various medicines through IV fluids and it was said to be simple gaseous disorder in abdomen. On 11.05.2014 when condition of complainant no. 1 became serious, x-ray of her abdomen was done. OP-1 doctor after seeing the x-ray report, told that everything was normal and that best treatment was being given to complainant no. 1. Complainant no. 2 seeing the critical condition of his wife got her discharged from nursing home on 12.05.2014 at 9 AM to be taken to some other doctor for treatment.
On 12.05.2014 at 11 AM she was taken to clinic of OP-4 at Begusarai, who diagnosed the case of SAIO (Sub Acute Intestinal Obstruction) and she was admitted to his clinic. But even after treatment at the clinic of OP-4, condition of complainant no. 1 worsened and at 7.30 pm, she was then taken to another doctor Dr. A.K. Chaudhary, who referred the patient to Paras Hospital, Patna for better treatment. On 13.05.2014 at 3 am she was taken to Paras Hospital, Patna but on being dissatisfied with the management of Paras Hospital, complainant no. 1 was taken to another hospital i.e. P.M.C.H., Patna on 13.05.2014 at 3.48 am and from there again she was taken to Arvind Hospital, Patna on 13.05.2014 at 9.45 am by ambulance. Patient was immediately admitted in the ICU of Arvind Hospital, Patna. After doing necessary tests, when doctor diagnosed intestinal perforation with septicaemia, laparotomy of complainant no. 1 was done and about 1½ feet long portion of perforated gangrenous small intestine was cut and a small piece of the same was also sent for biopsy test. Patient was kept in ICU for nine days and 6 units of blood were also injected during her treatment. On 28.05.2014, patient again felt severe abdominal pain and fever with chill. Ultrasound was done which showed reconstruction and adherent gut with loops. Doctors of Arvind Hospital refused to further treat her and complainant no. 2 got her discharged from that hospital on 29.05.2014 and from there patient was admitted to Anupama Hospital, Patna. Various tests including widal test were done, which came positive. Patient was discharged from Anupama Hospital on 10.06.2014 with instructions to stop all the medicines. Patient was under examination of Anupama Hospital till 31.10.2014 but there was no relief in her abdominal pain and ultimately, her husband took her to Dr. R.M.L. Hospital, New Delhi on 21.02.2015. Dr. (Prof) M.P. Arora, Sr. Surgeon in Surgery Deptt. of AIIMS examined her and CECT test done and she was diagnosed with serious and dangerous disease in caecum, ileocaecal junction and right iliac fossa (caecum thickening of intestine). Dr. (Prof) M.P. Arora prescribed her some medicines with an advice that major operation can be done in future. Again on 08.05.2015, complainant no.1 was brought for treatment to AIIMS, New Delhi for consultation where she was examined by a team of experts and on the basis of previous medical slips and test reports she told that dangerous disease has developed in her abdomen. She was then sent to Gastroenterology Department for Colonoscopy test. Complainant no. 2 along with patient again on 14.05.2015 visited Gastroenterology Department of A.I.I.M.S., New Delhi where doctors in Gastroenterology Department confirmed her to be suffering from incurable 'Crohn's' disease. One Mebaspa tablet was prescribed by the doctor to be taken only in case of severe abdominal pain. On 12.06.2015 patient again visited Gastro Deptt. of AIIMS, New Delhi where Colonoscopy test was also done in which '15 cm Terminal Ileum' was seen. On 17.06.2015, doctor at Gastrology OPD of AIIMS, New Delhi, after examining all the test reports and colonoscopy test report, confirmed that she was suffering from complex and dangerous disease which is incurable. Again on 12.08.2015 complainant no. 1 was again brought to AIIMS, New Delhi where, as per complainant no. 2, it was told to them that it was a case of complex and dangerous cancer which had spread in entire intestine. No medicine was given but they were advised to come for regular test and examination in future. On the very same day i.e 12.08.2015 at 4 pm, she was taken to Senior Gynaecologist of Sir Ganga Ram Hospital, New Delhi, who after examining previous medical slips and test reports, referred her to Gastroenterology department of same hospital. Senior Surgeon Dr. (Prof.) S. Nandy of Gastroentero Surgery department examined the patient and diagnosed her with Crohn's disease and consequently referred her to Sr. Gastroenterologist Prof. Anil Arora, who examined the patient and diagnosed "Ileocaecal thickening" and advised her to live with care and caution in future by prescribing some medicines. On 30.01.2016 again when condition of complainant no. 1 became serious, she was taken to Dr. Achal Sinha at Patna who examined the patient and after seeing all previous medical slips and test reports said that condition is very serious and prescribed some medicines and advised live with care and caution. However, her condition did not improve. Then again she was brought to Paras Hospital on 18.03.2016, where Gastrophysician Dr. Ramesh Kumar and Gastroentero surgeon Dr. Uttpal Anand examined her and diagnosed that all internal organs of abdomen had become adherent and attenuated, which was not curable and she may need operation in future. She was under treatment in Paras Hospital, Patna from 18.03.2016 to 19.03.2016. Again on 12.06.2017 when complainant no. 1 again faced stiffness, pain and burning in abdomen, she was taken to Gastro specialist Dr. Sanjeev Kumar at Begusarai, who after thorough examination informed that she had serious illness and referred her for opinion from higher centre. On 06.07.2017 complainant no. 1 was taken to Gynaecology department of IGIMS, Patna where Dr. Neeru Goel diagnosed her with Crohn's disease and referred her to Gastrology department. Complainants again went to Paras Hospital on 06.07.2017, Patna, where gastro specialist Dr. Vijay Shankar examined her and diagnosed that she is suffering from Crohn's disease. On 12.10.2017, when patient was taken to Dr. A.K. Chaudhary, surgeon, Begusarai, he also diagnosed the Crohn's disease and she was referred to Asian Institute of Gastroenterology Department, Hyderabad. Various tests and intensive treatments were done by specialist doctors and surgeons of different hospitals till 30.03.2018 but condition of the patient did not improve.
2. Being aggrieved by the immoral behaviour of the opposite parties, complainant no. 2 filed a case against OPs 1 to 3 on 21.08.2014 before Ethics Committee of M.C.I., New Delhi, which referred the same to Registrar B.M.R.C., Patna. But no former order or instructions have been passed by B.M.R.C., Patna till date even after sending several reminders to the Registrar of B.M.R.C., Patna.
3. On 05.05.2016 complainant no. 2 filed an application against OPs 1 to 3 and OT Assistant of OP 1 before S.P., Begusarai but the same was set aside on the basis of report dated 28.05.2016 of 'no negligence' received from the Civil Surgeon, Sadar Hospital, Begusarai. Complainant no. 2 filed an application under RTI dated 14.10.2016 asking for attested copies of complete medical expert opinion. Legal Notices dated 18.07.2014 and 31.01.2015 sent to OPs 1 and 2 have not been replied by them. On 02.02.2018, 08.02.2018 and 30.03.2018 complainant no. 1 was brought to Deepak Kumar Clinic, Begusarai, Paras Hospital, Patna and Palika Vinayak Hospital, Patna respectively for medical check-up of abdominal pain and burning, who after thorough examination of patient and previous test reports, concluded the same to be Crohn's disease and prescribed some medicines and was advised to live in care and caution.
4. Intensive treatment and various tests were done by specialist doctors and surgeons of different hospitals but condition of complainant no. 1 did not improve and that too after spending Rs.16,42,133/- in total. Due to faulty treatment and tests done by opposite parties, complainant no. 1 got serious disease of abdomen and she lost her job also.
Being aggrieved, complainant no. 2 first filed a complaint before Hon'ble State Consumer Disputes Redressal Commission, Patna under section 17 of the Consumer Protection Act, 1986 on 19.11.2014, in which compensation to the tune of Rs.91,47,672/- was demanded. However, State Commission vide its order dated 16.10.2017 dismissed the complaint as being withdrawn for lack of pecuniary jurisdiction, by passing following order:
Complainant's present. The counsel for the opposite party no. 1, 2 and 3 also present. The complainant files written notes of argument annexing some documents, copy to the same is served to the opposite parties.
The complainant files a withdrawal petition stating exceeding of pecuniary jurisdiction of this Commission on account of reassessment of pay scale and prays for withdrawal of the complaint petition with liberty to file a fresh complaint before the National Commission, New Delhi.
The Counsel for the opposite parties object and submits that the complainant should not be given liberty to file a fresh complaint after long time when the complaint was fixed for final hearing and with wrong intention to harass the opposite parties purposely.
Heard the parties.
Having considered the submissions as above, however the prayer of the complainant to withdraw the complaint is allowed.
In the result, the complaint is dismissed as withdrawn.
Hence, the present complaint before this Commission filed on 17.04.2018 seeking a total compensation of Rs.39,23,09,650/- with 18% annual interest from the date of filing of complaint on 19.11.2014 before State Commission.
5. Opposite party no. 1 Dr. Vijay Kumar, Kumar Nursing Home filed a short reply dated 25.01.2019 confining to the issue of maintainability of the complaint and quantum of compensation claimed by the complainants. After about 3 months of first consultation, on 07/03/2014 complainant number one again consulted OP number one for abdominal pain and expressed her willingness for surgery of appendix. Necessary investigations were advised and 12th of March 2014 was fixed as the date for operation. The Complainant No.2 requested for tube ligation to be done along with surgery of appendix surgery. Proper consent for both operations were taken and details of surgical procedure and events occurring during surgery were explained to complainant number 2 inside the operation theatre and removed appendix was shown to the complainant number 2. The operation theatre note was maintained wherein it was mentioned that under general anaesthesia bilateral tubectomy and appendicectomy done, terminal ileum, a part of the small intestine, was densely adherent with coecum, a part of large intestine, and appendix. While doing appendicectomy during separation of adhesions, terminal ileum was found to be leaking, leak was closed with number 1 Catgut in layers, drainage given and wound closed with No. 1 Vicryl. As the complainant number one was wife of a Doctor i.e Complainant No.2, the OP No.l did not charge any fees to the complainant and the entire treatment was done free of cost. The operation was successful and after removal of the stitches, the patient was discharged on 20th of March 2014. Thereafter the Complainant No.l consulted OP No.l on 10th of May 2014 after a gap of 48 days, with complaints of pain and distended abdomen, not passing of flatus and belching. After physical examination of the patient, the chest was found clear and CVS/CNS NAD. After considering the case of the complainant medicines were prescribed. Dilona 1 Amp IM BD, Pandostal 1 Vial IV Stat, Ulgel 2 Tsf X 3 1 phial, R/L. OU slow iv, NC (1 gm) one vial IM/IV daily. The complainant number one went to her rented house and did not stay in the clinic and on 10.05.2014 she was under treatment of complainant number 2 her husband who is a homeopathic doctor. On 11/05/2014 the patient again contacted OP number one at about 7:30 AM and after examining the patient, the OP number one advised conservative treatment. The Complainant No.l was given following medicines: Veioz 1 vial IV stat, R/LOII, DNS OI, 5% Dextrose OI + MV II amp, Zanocin OZ OI, Dilona 1 amp, IM X BD and Cefaxone (Ig) one vial IV XBD. On the same day plain x-ray abdomen including diaphragm in erect position was advised. The x-ray plate report and the patient was seen by OP No.l on 11/05/2014 at about 9:30 PM. The X-ray report stated that there was no free gas under both the domes of the diaphragm and distribution of the gas shadow appeared normal. After seeing the x-ray plate and the report and having examined the patient, the OP No.l advised the Complainant's to consult another doctor and accordingly they consulted Dr Deepak Kumar Singh (Gastroenterologist) and Dr AK Choudhaiy. After 11th of May 2014, the complainant number one did not consult OP one. All the treatments of complainant number one were free of cost without any fee being charged and were so done according to the Standard medical procedure. With regard to specific allegations, after denying all allegations, it is stated that it is an admitted position on record that there are no medical prescriptions or documents for the intervening period of 48 days which makes the allegations impossible because a person cannot bear the pain and septicaemia if at all resulting from Surgery by OP-1 for a long duration of 48 days without consulting a Doctor. The complainants did not consult OP number one between 28th of March 2014 till 11th of May 2014. The OP number one has sympathies for complainant number one but the medical complications of complainant number one cannot be attributed to OP number one under any circumstance as there was no negligence in the surgery of appendix and procedure of tubal ligation. Thus any allegation of septicaemia on account of negligence is a bald averment having no basis as per medical science and cannot sustain the judicial scrutiny. ,It is also denied that complainant's were charged any fees or that the complainant made a payment of Rs 4200 or Rs 600 as alleged by them. It is denied that OP number one informed the complainant number 2 about any hole in intestine of complainant number one and in fact had informed complainant number 2 that small intestine was adherent and while removing the adhesions, terminal ileum was found leaking which was duly repaired. the fact that complainant number one suffers from an adherent gut is also substantiated by the subsequent medical reports and diagnoses done by dozen of doctors and hospitals, which medical record is available on record of the present case. On 20th of March 2014 when the complainant number one was discharged there was no fever and fever was noticed on 23rd of March 2014 for which she was given medicine and on follow-up on 28 of March 2014 she was found to be alright. The treatment given to complainant number one by OP number one is recorded in the prescriptions and anything stated contrary to that is wrong and denied. It is denied that Rs. 67,000 was paid by complaints to the OP number one. The treatment was done without charging any fees. At the time of discharge all the medical prescriptions and investigation reports were handed over to complainant number 2 and only Risk Bond was retained by OP number one for his record.It is further stated that complainant number one went to her rented house in Begusarai and did not stay in the clinic of OP number one and in the intervening night of 10/05/2014 complainant number one was under treatment of complainant number 2 who is a homeopathic Doctor. the perusal of prescription of OP number 4 reveals that complainant number one was diagnosed with sub acute intestinal obstruction (SAIO) and not perforation as alleged by the complainant. However it is important to state here that none of the doctors or the hospitals where the complainants subsequently went for treatment made any opinion or a remote suggestion to the effect that problems being faced by complainant number one was a sequitur to the surgery performed by OP number one on 12th of March 2014. The complainants have contended that during treatment of complainant number one at Anupama Hospital, pathological test was done and Widal Test was positive confirming infection of Salmonella Typhi in previous surgery. A bare perusal of the report does not support what is contended by the complainants. Moreover, previous surgery preceding the test at Anupama hospital was performed by Doctors at Arvind Hospital. Subsequent hospitalisation or consultation slips did not comment upon the surgery performed by OP number one and they only recorded the history narrated by the complainant's.
As per OP-1 the report of ethics committee of MCI, Bihar branch dated 14.01.2016 has in a very categorical terms concluded that Dr. Vijay Kumar cannot be guilty of medical negligence during surgery and the ethics committee recommended dropping of the case against Dr. Vijay Kumar on the basis that, if at all any perforation or leak persisted after repair, the patient could not have attended her normal duties as a school teacher for 48 days. Even the report of the medical board dated 27.05.2016 constituted by the Civil Surgeon cum CMO, Begusarai on the directions of SP, Begusarai also clearly exonerated him from any kind of medical negligence and has held that there are no shortcomings in the treatment given by him. As per OP-1 even the prescriptions and documents of various hospitals and doctors do not opine that there has been any negligence on his part. A bare perusal of Order dated 16.10.2017 (page 103 of the complaint) passed by State Commission, Bihar reveals that it allowed the complainant to withdraw the complaint but did not grant any liberty, which was prayed for by the complainants and the complaint was simply dismissed as withdrawn. Moreover, there were three respondents namely Dr. Vijay Kumar, Dr. Nalini Ranjan Singh and Dr. Mukesh Kumar in the State Commission whereas in the present complaint Dr. Deepak Kumar Singh has also been arrayed as OP-4 for which no liberty was given by the State Commission. Compensation sought for by the complainants before the State Commission was Rs.91,47,672/-, which increased to Rs.22,95,53,941/- due to which its pecuniary jurisdiction in State Commission was defeated and now claim sought before this Commission is Rs.39,23,09650/-. Hence the complaint is liable to be dismissed at the threshold being vexatious and malafide. The present complaint petition has been filed on 17/04/2018 after almost 4 years and one month of the surgery done by OP number one and therefore the petition is delayed by 2 years and one month and the complainant has not offered any explanation for this delay and has neither moved any application.
Preliminary Objections: 1. That the present complaint petition is barred by law of limitation as envisaged under section 24 A of the consumer protection act 1986 only three respondents namely Dr Vijay Kumar, Dr Nalini Ranjan Singh and Dr Mukesh Kumar whereas in the present complaint Dr Deepak Kumar Singh has been arrayed as opposite party number 4 for which there is no liberty given by the Hon'ble State Commission. Thus the present complaint cannot be taken to be in continuation of the complaint filed before the State Commission treatment was free of cost being wife of a Doctor i.e. Complainant No.2 and no payment was done by the Complainants to OP No.l. Even otherwise the present complaint on behalf of Complainant No.2 is further not maintainable for want of any cause of action in favour of Complainant No.2 who did not hire or avail any services as his wife was a patient who is Complainant No.l.
6. OPs 2 and 3 through their reply dated 18.03.2019 and dated 9.02.2022 denied all the allegations. As per OPs 2 and 3 complaint is barred by limitation as it has been filed in this Commission after about 4 years of alleged cause of action. OP-2 Dr. Nalini Ranjan Singh is a qualified Orthopaedic Surgeon and OP-3 Dr. Mukesh Kumar is a qualified Radiologist. The X-ray taken by OP-3 was normal and it read as, "No free gas under both domes of the diaphragm, distribution of the gas shadows appear normal", which means no clear-cut abnormality appeared apparently till that time. It is contended that complainants have filed the present complaint by suppressing reports of two government medical boards, which have exonerated OP-1 and 3. OP-2, owner of the scan centre, had no role to play in X Ray and its report which got re-examined and was found satisfactory by HOD of PMCH. Hence the complaint is liable to be dismissed.
7. OP-4 Dr. Deepak Kumar Singh, Gastroenterologist also filed his written submissions on 18.03.2019 wherein it is averred by OP-4 that he was not a party before State Commission and has been arrayed as a party in this Commission, for which there is no liberty given by the State Commission. Hence present complaint cannot be in continuation of the complaint filed before State Commission. As it is filed after four years of cause of action so complaint is not maintainable and is liable to be dismissed. Complainant no. 1 was brought to OP-4 on 12.05.2014. OP-4 thoroughly examined the patient and also reviewed her previous medical prescriptions and diagnostic reports. OP-4 suggested for admission, to which complainant no. 1 and 2 refused and left the clinic against medical advice. As no treatment could be administered by OP-4 on complainant no. 1, OP-4 cannot be held liable for any medical negligence in the present case.
8. The complainants filed rejoinder on 14.05.2019 stating that OP-1 is only an MBBS degree holder and is having no M.S. Degree. As per complainant no. 2 all payments for whole treatment was made by him to OP-1 in cash and no receipt for the same was provided to him by OP-1. Complication of typhoid occurred due to surgical injury in terminal ileum done by OP-1 on 12.03.2014 during illegal multiple operations. There was no relief from abdominal pain which complainant no. 1 was facing while moving, sitting and even standing. As a result of medical negligence of OPs, complainant no. 1 became victim of painful and dangerous crohn's disease. As per rejoinder filed by the complainants, the above facts have been confirmed by senior surgeon and Gastroenterologist of AIIMS, New Delhi and Sir Ganga Ram Hospital, New Delhi and all of them advised to live in care and caution and major operation will be done in future. Surgery of appendix was not done in accordance with the standard procedure of medical science. Due to the negligence of OP doctors, complainant no. 1 is fighting from life and death and she has lost her government job also. Being aggrieved by the immoral, unethical, tortious activities and behaviour during treatment of patient, complainant no 1 filed the present complaint. Senior surgeon at PMCH, Patna diagnosed Intentional Perforation with severe bacterial infection in previous surgery done on 12.03.2014. Complainant no. 1 has been suffering from dangerous crohn's disease due to illegal multiple experimental operations done by OP 1. Hence OPs are liable to pay total compensation as claimed by them.
9. Parties led their evidences by way of affidavit and filed their written statements, rejoinder and written synopsis. Evidence by way of affidavit filed by the complainant no. 2 on 13.08.2019 (Part II). Affidavit of admission/denial filed by complainant on 01.07.2019 (Part II). Additional evidence filed by complainants on 27.10.2022 (Part IV) and additional evidence filed by OP 1 and 2 on 12.01.2022 (Part II). Affidavit and additional evidence have also been filed by the complainants on 27.05.2023. Complainant No. 2 again filed additional evidence by way of affidavit on 16.05.2023 (Part II).
10. We have heard the counsel for the parties and perused the documents on record. It is averred by the complainants that surgical injury occurred during illegal multiple experimental operation and faulty treatment of patient done by OP-1 on 12.03.2014 which led to present condition of complainant no. 1 (patient) due to which she became a victim of dangerous surgical complications of typhoid. Surgery of abdominal tubectomy done by OP-1 was the biggest culprit followed by abdominal hysterectomy, exploratory laparotomy for perforation, peritonitis and appendectomy for intestinal perforation as per medical literature. As per complainant no. 2, OP-1 doctor is having only an MBBS degree and is not a M.S. degree holder and has not registered additional qualification with B.M.R.C., Patna. Thus OP-1 has been doing unfair trade practice from years by way of misleading advertisements of M.S. Degree in General surgery.
11. On the other hand, it has been contended by the opposite parties that complaint suffers from suppression veri suggestio falsi and it deserves to be dismissed. The complainants have not filed any medical report or opinion which can indicate that there was any negligence as alleged. As per OP-1, after being operated on 12.03.2014, patient again consulted him on 28.03.2014 for follow up and as there was no fever, only vitamins and medicines for gas and enzymes were prescribed. Complainant no. 1 started performing her duties as a teacher at a Government school after surgery till 09.05.2014 which is about 45 kms. away from her rented house in Begusarai. It is contended by OP-1 that if first surgery was negligently done which resulted in alleged septicaemia, patient could not have been able to attend her official duties, which in fact she did attend. She again consulted OP-1 on 10.05.2014 i.e. after a gap of 48 days for pain and distended abdomen and some gastric problems for which medicines were prescribed by OP-1. The repeat consultation after surgery on 23.3, 27.3, 10.5 and 11.5 show the satisfaction of OPs and success of surgery. As per OP-1, at the request of complainant no. 2, he performed tube ligation along with surgery of appendix on 12.03.2014 and for which due consent was obtained from complainant no. 2 on Risk Bond. As per OP-1 surgery was done in accordance with the standard procedure. The allegations levelled by the complainants are not true as complainant no. 1 suffered from adherent gut and chronic intestinal inflammation even on 12.03.2014 when OP-1 found adherent gut, and while separating the same, he also repaired the leakage in terminal ileum (WS of OP-1)(page 14). None of the doctors or the hospitals where the complainants went for treatment made any opinion or a remote suggestion to the effect that problems being faced by complainant no.1 was a sequitur to any medical negligence in the surgery performed by OP-1 on 12.03.2014 or can be attributed to any of the OPs. complainants alleged that due to medical negligence of OP Nos. 1 to 4 complainant no. 1 became seriously ill and a major surgery will be done in future. However, nothing has been placed on record to show as to what is the present condition of the patient. As per OP-1, Complainants consulted around 19 doctors and hospitals apart from the OPs in the present complaint but not even a single doctor/hospital has opined that the surgery of appendix was wrong or that alleged complications are a result of the faulty surgery.
Maintainability - The OPs have opposed the complaint on the preliminary ground that the complaint is not maintainable for the reasons of (a) the complaint is time-barred, (b) that the complainant has unduly enhanced the quantum of compensation to become eligible before the National Commission, (c) under rule 7(5) of Bihar Medical Service Institution and Persons Protection Rules, 2018, the notice by the consumer fora to the doctor or medical institute for medical negligence cannot be issued without first obtaining the medical opinion through District Magistrate that there is prime facie case of medical negligence. In this behalf we note that the negligence of the OP-1 is alleged with regard to surgery conducted on 12.03.2014 and the complaint before the Commision was filed on 17.04.2018. However, it is stated by the complainant that earlier the complaint was filed before the Bihar State Consumer Disputes Redressal Commission in the year 2014 (CC/49/2014) which was, on complainant's prayer, allowed to be withdrawn because the complainant wanted to claim higher amount of compensation due to passage of time, which was allowed vide State Commission's order dated 16.10.2017. The complaint is thereafter filed within six months. The larger bench of this Commission has held that the merit/dispute of quantum of compensation cannot be gone into by the Commission in view of express language of Section 21, "value of goods or service and compensation, if any, claimed exceeds Rs.1 crore". Further, the Bihar Medical Service Institution and Persons Protection Rules, 2018 came into force after 29.10.2018 before which date the complaint was already filed and notice had already been issued vide order dated 03.08.2018. In view of this, there is no merit in the grounds of maintainability raised by the OPs 1 to 3.
12. However, we note that the complainant filed the complaint before the State Commission on 17.11.2014, which was allowed to be withdrawn by the State Commission vide order dated 16.10.2017. OP-4, Dr. Deepak Kr. Singh was not arrayed before the State Commission. The copy of the complaint CC No. 49/2014 before the State Commission is at page no. 94 of the written arguments filed by OPs - 1 to 4 on 09.02.2022. It is clearly seen that only three opposite parties have been arrayed. The role for which the allegation of medical negligence has been levelled in the present complaint against OP-4 admittedly arose on 12.05.2014 when the OP-4 was consulted. It is also an admitted fact that after OP-4, on the same day, the complainant had consulted Dr. A.K. Choudhary, who had made a reference for admission into ICU with observation of surgical emergency. Therefore, it gets established on record that except one consultation, (and LAMA for which also no substantive reason or cause has been shown by complainant), there is no further role which can form the basis of any allegation of medical negligence. Subsequently and admittedly when the complaint was filed before the State Commission, the OP-4 was not arrayed. As on that date therefore, the complainants had no cause of action against OP-4 and such absence of cause of action continued till the date of filing of complaint before this Commission on 24.01.2018. Thus, there is a gap of more than three and a half years from the date of consultation of OP-4 that any allegation of medical negligence has been raised. Therefore, while the complaint as a whole is held to be not hit by section 24A of the Consumer Protection Act, 1986, the allegations against the OP-4 are held to be barred by limitation and therefore do not require adjudication.
13. OP-1 is the doctor who admittedly performed the surgeries of appendix and tubectomy on 12.03.2014, the patient stayed in OP-1's hospital - Kumar Nursing Home during the period 12.03.2014 to 20.03.2014 and thereafter was again consulted on 23.03.2014 and 28.03.2014. Subsequently, on 10.05.2014 the complainants again visited OP-1, who it appears recommended an X-ray, the report for which was obtained on 11.05.2014 wherein it is mentioned that "no free gas under both dome of diaphragm. distribution of the gas shadow appear normal". The report of the X-ray shows that the same has been obtained from Begusarai Scan center and the report has been signed by Dr. Mukesh Kumar, who is OP-3. Thereafter, the complainants consulted Dr. Deepak Kr. Singh, OP-4 on 12.05.2014, Dr. A.K. Choudhary of People's nursing home again on 12.05.2014, who, without seeing the patient, but as a consultation, referred the patient for surgical emergency of ICU in Paras Hospital. Dr. JKI Das of Paras Medical hospital was consulted on 13.05.2014, who as recorded on page 114 of the complaint, records "HOPI - patient gives H/O appendectomy on 12th March along with ... for intestinal perforation and tubectomy". Thereafter the patient was admitted on the same day in Patna Medical College where (page 116) again the patient's complaint of Obstipation for two days and severe abdominal pain for two days have been recorded. Further examination recorded by the doctor of Patna Medical college notes that pulse - radial not palpating, heart rate 140 per minute, regular and feeble, BP - systolic 56, diastolic not palpable. On the top of the prescription area, suspected intestinal perforation with hypovolemic shock". The abdomen is recorded to be rigid with tenderness in all quadrants. It is also recorded that the EBS, USG, Ultrasound whole abdomen, etc. were carried out. However on the same date, the complainant no. 2 shifted the patient to Arvind Hospital. Page 120, the admission notes of Arvind Hospital record the complaints of abdominal pain, vomiting and absence of passing of stool for two days. However, the BP and pulse had improved by that time recorded as BP - 110/70 and pulse - 90 per minute. At 9.45 pm the SPO2 - 98%, pulse 116, BP 100/70 with support of Norad have been recorded. The patient was admitted in the ICU and Transonography report records the impression "excessive gas, mild collection in pelvis cavity + sluggish peristaltic waves + all suggests perforation in bowel". As per the complainant the finding in the OT notes (page 123) and discharge ticket for "discharge on request" at page 199, are to the effect that "subcostal/heised peritoneal cavity opened. A giant perforation in small gut - excised & anastomosis done. 2'0' vicryl. Haemostasis - seemed". After taking the discharge on request on 29.05.2014, the patient was admitted to Anupama Hospital on the same date where again USG and other reports were obtained and after conservative treatment was discharged on 10.06.2014. Thereafter periodically the complainant has consulted various consultants at various places on OPD basis with the chief complaints of abdominal pain, burning and discomfort. Finally, as late as in the month of May, 2015 AIIMS, New Delhi diagnosed and recorded for the first time that the complainant 1 is a case of Crohn's disease and that the gut walls are thickening and have inflammation. Even after the diagnosis of Crohn's disease and continuing treatment therefore, the complainants have been consulting numerous doctors with chief complaints of the abdominal pain and discomfort, which vide additional affidavit of the complainant, went on till 2022 and thereafter.
14. The perusal of the complaint broadly indicates the treatment journey of the complainant no. 1 from the period December, 2012 when she first consulted OP-1 - Dr. Vijay Kumar with complaint of abdominal pain and till the date of filing of the complaint, and thereafter (as submitted in compilation by the complainant filed on 27.10.2022). The main allegation of the complainant against the OP-1 doctor is that (i) OP-1 conducted the appendix and tubectomy surgery without proper pre-surgery diagnostic tests and without proper skill, (ia) the surgery so performed was faulty and inaptly performed which resulted into intestinal perforation, septicemia and all further agonies of the complainants (ib) the hospitalization in OP-1's hospital also resulted in Typhoid, (ic) the incision for the surgery was wrongly made at a wrong place (ii) there was no proper consent obtained, (iii) the cut-out appendix was not shown to him, (iv) during 10.05.2013 to 12.05.2013 when the patient was taken in emergency and admitted, the doctor did not attend but provided treatment by way of telephonic instructions to the staff and thus showed medical negligence, (v) Just to get saved from consequence of faulty surgery, and to get a clean-chit, the OP-1 colluded with OP-2 and OP-3 to create a evidently false X-ray report of whole abdomen where it is recorded that no gas under diaphragm was seen and that distribution of gas shadow was normal, (vi) All OPs have no prescribed post graduate medical qualification to either to perform surgery, or to pose as persons qualified to operate diagnostic center or to certify and give opinion in the X-ray report.
15. OPs have denied all the allegations in the complaint and have provided detailed explanation and medical literature which support their denial. In particular, the order dated 14.01.2016 of Bihar Council of Medical Registration (page 52) the order of the Medical Board dated 27.05.2016 (page 68 to 81 of written arguments) and of Patna Medical College & Hospital (page 55 to 58) dated 05.02.2015 have been brought to our notice. It is seen in these reports that the report of the Medical Board of Begusarai is in connection with the police complaint where reference was sought from the Medical Board. In that complaint, which was made only against OP-1-3, there was only one main allegation to the effect that wrong incision was made for the surgery. The medical board gave a detailed report (page 61 to 67). As recorded in the report, the complainant no. 1 first consulted OP-1 on 05.12.2013 when appendectomy was recommended but actually surgery took place on 12.03.2014 after the complainants had consulted OP-1 again on 07.03.2014, when various necessary medical tests were prescribed and reports received. During the surgery wrong incision was made and when after the surgery on 13.05.2015 complainant no. 1 was again operated at Arvind hospital 2 ft. long portion of the intestine was removed. Relying on the operation notes of OP-1, it is noted that terminal ileum, Caecum, Omentum were adhering to the appendix and while separating the appendix from the adhesion a small leak in the terminal ileum was repaired with catgut and the entire procedure was informed to Mr. Ram Kishore Singh, husband of Mrs. Neetu Kumari. It is further noted that medical investigations at Delhi in the year 2015 brought out that the complainant had intestinal tuberculosis /Crohn's disease which take long time to exhibit symptoms. In particular the crohn's disease is caused by genetic and environmental factors and which requires diagnosis through barium enema and not by CT abdomen. After considering these facts, the report of the Medical Board concludes that "on investigation and consideration of all the aforesaid facts and aspects, it emerges that Dr. Vijay Kumar has not committed any lapse in the treatment of Mrs. Neetu Kumari and has not committed any negligence. Allegations made by Mr. Ram Kishore Singh are baseless, false and prejudiced. Doctor has given standard treatment as per his expertise."
16. The foundation of the present complaint against OP-2 and 3 is that OP-2 is the owner of the Begusarai Scan Centre and OP-3 is the radiologist who certified the X-ray report of 11.03.2018. It has been stated by OP-2 that she has been unduly dragged into this litigation simply for the reason that she owes the diagnostic centre. There is no role played by her in the whole treatment of the complainant nor in getting the X-ray film or preparation of the report thereon signed by OP-3. OP-3 has stated that he is qualified doctor having done his MBBS from Bhagalpur University and certificate of diploma in Radio Medical diagnosis from Patna University. Additionally, it is stated that on the basis of the complaint filed by the complainant before Bihar Council of Medical Registration, investigations were carried out with regard to the accuracy of the report prepared by OP-3 on the X-ray plate. The report of the same dated 14.01.2016 sent by the Registrar to the Medical Council of India (page 52 of the written submissions of OP-1 to 4) clearly mentions that the opinion of HOD of the Radiology Department of Patna Medical College and hospital, Patna enclosing the X-ray plate was called for and it is the opinion dated 05.02.2015 that "no evidence of extra luminal air, no evidence of abnormal air fluid level, bowel gas pattern normal, the fundal gas shadow normal, no evidence of radio opaque density." Further the report notes that the patient Smt. Neetu Kumari could attend her normal school duties from 26.06.2014 to 08.07.2014. Ram Kishore Singh had alleged that Dr. Vijay Kumar has managed false report of X-ray plate of Smt. Neetu Kumari. Because the opinion of Patna Medical College was also obtained after submitting the X-ray plate, the allegation cannot held true.
17. After hearing the parties and surveying the bulky evidence and literature, we first note that the State Commission, while allowing the withdrawal of appeal, has not expressly allowed the re-filing of the complaint before the National Commission. Then, the complainant unduly and wholly wrongly additionally implicated OP-4 before us in a grossly time-barred attempt for his role of a prescription and from whose hospital when and how he has opted for discharge is not made clear by the complainant and OP-4 himself states it to be a case of LAMA. The only allegation is that after diagnosing Sub Acute Intestinal Obstruction (SAIO), he has not prescribed diagnostic tests and has not referred to a higher centre. We have already dismissed the complaint against OP-4 as time barred. The allegations against OP-2 are more hollow and an unholy attempt to unduly implicate a wholly unnecessary party. OP-2, apart from being an orthopaedic surgeon, is only the owner of the centre. The centre or owner has no accountability when the simple x-ray test is done in the centre but the report is signed by another professional (OP-3) after examination of the X-ray plate. The X-ray plate has not been produced and there is no allegation or evidence that the infrastructure used in the Begusarai Scan Centre of which the OP-2 is the owner is defective or lacking in any fashion. Therefore, we find that the allegations against OP-2 and even the implicating of OP-2 in this complaint are wholly unfounded. It also needs to be mentioned that in the police complaint filed by the complainant with regard to collusion between OP-1 and OP-3 in connection with the wrong/fraudulent X-ray report, which finally got investigated which required report dated 14.01.2016 of Bihar Council of Medical Registration had not implicated OP-2. In any case, the said report dated 14.01.2016 has clearly and categorically observed that the X-ray plate in question was sent to Patna Medical College and the report of OP-3 doctor Dr. Mukesh Kumar dated 11.05.2014 cannot be faulted in any way because is in full conformity with the independent report after examining the X-ray plate prepared by Dr. (Prof) G.N. Singh, HOD, Department of Radiology, PMCH, Patna. In view thereof, and in the absence of both the concerned X-ray plate and any other expert medical opinion, no allegation against OP-3 also survives. The complainant has burdened the record of the commission with various copies of RTI applications and replies thereto with regard to his further allegation that even the report of BHMR is fraudulently obtained. However, after perusal of the relevant material on record, we find no reason or ground to hold that there is any deficiency or negligence in the report of Dr. Mukesh Kumar or that any fraud by or any collusion between OP-1, OP-2 and OP-3. The complainant has also alleged that Dr. Mukesh Kumar has no requisite medical qualification. However, the OP-3 has categorically stated that he done his MBBS from Bhagalpur University and certificate of diploma in Radio Medical diagnosis from Patna University. We have no credible material to disbelieve the evidence Exhibit R-3/1. As a matter of fact the allegation of lack of requisite medical qualification has been irresponsibly made against each of the OPs and we have found after examining the evidence filed by the OPs that the allegations are wrong (pages 183 to 204 of the written arguments of OP- 1 to 4) In view thereof, the complaint and allegations against OP-2 and OP-3 are also dismissed. Consequently, we uphold the authenticity of the X-ray report dated 11.05.2014 prepared by Dr. Mukesh Kumar, which would imply also that no fault error or negligence can be attributed at all on OP-1 for his alleged negligence or alleged "cover up" exercise during 10-12th May, 20.
18. That brings us to allegations against OP-1 for surgery on 12.03.20. His medical qualification is found to be satisfactory by us. As a matter of fact we have noted that the complainant no. 2 is a homeopathic doctor and against the categorical averment in the reply filed by OP-1 to the effect that the treatment of complainant 1 by OP-1 was without charging any fee due to medical fraternity, the complainant has not placed any positive evidence on record that the medical services from OP-1 have been obtained for a fee paid by her. Only the bald statement about the payment of the fee has been made in the complaint. Apart from that, it is a matter of record that the complainant 1 after the discharge from hospital visited twice for post-surgery consultations and no concerns were raised. Thereafter, the complainant 1 has attended her regular duties in a school for a long period of 48 days after her discharge from OP-1's hospital on 12.03.2014 and before her consultation with OP-1 on 10.05.2014. Thereafter also, during the month of June after she got operated at Arvind Hospital and Anupama Hospital and got finally discharged on 10.06.2014, she has performed her duties for a period of 26.06.2014 to 08.07.2014. It is not denied by the complainant that the school duty required her to undertake travel by bus for a distance of nearly 40-45 kms. The allegations with regard to pre-surgery tests and the nature of consent, we have reason to agree with the OP-1 that the pre-consultation had happened on 07.03.2014 and when pre-surgery tests were prescribed. Apart from the allegation that the inapt surgery resulted into avoidable intestinal perforation, there is no allegation about the surgical/medical complication during or after the surgery or during or after the anesthesia. No allegation of anesthetic deficiency has also been levelled against anyone. Therefore, in the absence of contrary credible evidence and after noticing the quantum of wholly baseless allegations in the complaint, we tend to give credence to the facts stated by OP-1 on affidavit. While we will observe that the more credible and complete record of the pre-surgery investigations should have been kept and produced by OP-1, in the absence of any adverse outcome, we would not hold OP-1 liable for any compensation. Similarly, the consent bond though clearly and categorically records the consent of the OP for surgeries of appendectomy and tubectomy, the same is not fully in conformity with the required standard of informed consent for medical procedure. However, because the complainant no. 2 is in medical field, it is not unnatural to conclude that the surgeon would definitely have explained the risks to the patient and her husband and therefore, the short consent can be taken to be an informed consent. There is no allegation of any procedure which is not authorized and the only allegation is with regard to the skill for performing the surgery. We find no merit also in the allegation that the cutout appendix was not sent for biopsy or that it was not shown to the complainant. As a matter of fact, such bald allegation is unbelievable because the complainant himself voluntarily and without any grievance or concern has consulted OP-1 again on 23.03.2014 and 28.03.2014. Also no adverse consequence has been faced by the complainant for "not seeing" the cutout intestine or for no-biopsy.
19. It is the main allegation of the complainant that the surgery of appendectomy was wrongly performed and wrongly started by putting a wrong incision which also resulted in intestinal perforation which is medical negligence of OP-1, compounded by obtaining fraudulent X-ray report from OP-3 for cover up. The Bihar Council of Medical Registration in report dated 27.05.2016 has categorically dealt with all the allegations with regard to role of OP-1 including that with regard to wrong incision in para (ii) of the report. It is the clear cut opinion that the tube ligation through incision at Macburney's point in Rt. Iliac Fossa is not convenient and the surgeon can always decide his convenience for incision with regard to nature of surgery. Such wrong incision alone is also not alleged to have caused any adverse outcome. With regard to the allegation that the inapt skill of OP-1 resulted into intestinal perforation or injury or that the complainant developed adhesive small bowel obstruction (ASBO) because of exploratory laparotomy, it is the submission of the OP-1 that complainant no. 1 was already having intestinal adhesions as noted in the OT notes, which is perused by us. The same was removed by the surgeon. With regard to allegation regarding use of catgut for repairing bowel skin and uterus, the OP-1 has submitted that only terminal ileum was repaired with catgut suture which is widely available, used and not prohibited in India. All these allegations and other allegations like contacting of typhoid and the allegations with regard to the visit/admission between 10.05.2014 to 12.05.2014, the OP-1 have submitted that there is absolutely no medical negligence made out or established on record. Firstly, the patient consulted as OPD patient twice and was not admitted in hospital and no such evidence of admission is on record. The X-ray was suggested due to abdominal discomfort and accordingly the report of the X-ray suggests that nothing adverse in the condition, treatment or consultation by OP-1 can be found or inferred or is established by the complainant. The literature relied upon by the complainant to suggest that page no. 69, figures 23.9 and 23.10 show multiple fluid level, intestinal obstruction but it states that plain X-ray was was obtained and if perforation is suspected, the same does not and cannot mean that multiple air fluid level denote perforation. The complainant has further relied on subsequent medical records of other institutions to allege that intestinal perforation had happened during the course of surgery by OP-1. However, we have already noted that the first record of "intestinal perforation" is at page 114 of complaint, which is categorically recording that it is history is given by the patient and not inferred from any independent record. In view of this, and in view of the clear cut and well-reasoned medical report of the Bihar Council of Medial Registration fully exonerating OP-1, and also in view of the fact that the patient has performed her duties regularly for 48 days before 10.05.2014 after bus journey of 45 kms. daily, and in absence of any contrary expert opinion, we find absolutely no medical negligence in law in light of various Supreme Court decisions laying down that medical negligence cannot be inferred lightly simply for choosing and prescribing or undertaking one particular course of treatment or surgery. It has to be shown that the standard of medical skill and care of the treating surgeon is below ordinary and usual skill. No direct and necessary connection of cause-consequence between the surgery performed by OP-1 and the removal of gangrenous intestine at Arvind Hospital is shown or established. Further, there is no reply or explanation by the complainant for perfect health enjoyed during 48 days when school at 45 km distance was also attended regularly. Simply because "intestinal perforation" is mentioned in Arvind Hospital discharge slip, and that previous tubectomy or appendectomy is described in literature to be the main culprit for the same, that itself even after a gap of 48 days' good health, cannot make OP-1 guilty of negligence. Further, mAdditionally, we also find that there is no medical record for the intervening period from 20.03.2014 to 10.05.2014 and it cannot be assumed that the surgery at Aravind hospital was necessarily a consequence of intestinal perforation which resulted due to inapt surgery by OP-1 and not due to any other exigency or medical intervention in the meantime. There are multiple other allegations which do not require our attention. Crohn's disease, the final diagnosis, and thickening of the intestinal wall takes long period to exhibit symptoms and non-diagnosis thereof or necessity of conduct of surgery itself cannot be questioned after even surgeries for perforation and intervening consultations with multiple doctors became necessary. Strongly on facts and on evidence on record, we have come to the conclusion that there is no negligence or deficit of requisite care and caution on the part of OP-1 and no ground of medical negligence is established by the complainant. Therefore, we do not discuss the medical literature relied upon by the complainant.
We find no merit in the complaint and the same is dismissed.
..................................................J RAM SURAT RAM MAURYA PRESIDING MEMBER ............................................. BHARATKUMAR PANDYA MEMBER