State Consumer Disputes Redressal Commission
1.The Oriental Insurance Co. Ltd., ... vs Smt. Kaushal Jain Wife Of Shri M.K. Jain, ... on 28 May, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.226 of 2011 Date of Institution: 14.02.2011 Date of Decision: 28.05.2012 1. The Oriental Insurance Co. Ltd., Divisional Office SB Road, Ambala Cantt Jawahar. 2. Dr. Jatinder Gupta, Gupta Hospital Taneja Road, Mahesh Nagar, Ambala Cantt. Both through Shri Kuldip Raj, Regional Manager, The Oriental Insurance Company Ltd. Regional office, LIC Building, II Floor, Jagadhri Road, Ambala Cantt. Appellants (Ops) Versus Smt. Kaushal Jain wife of Shri M.K. Jain, 23, Om Bhawan, Ashok Vihar Mahesh Nagar, Ambala Cantt. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri D.C. Kumar, Advocate for appellants. Shri Ashotosh Aggarwal, Advocate for respondent. O R D E R
B.M. Bedi, Judicial Member:
This appeal has been preferred against the order dated 28.12.2010 passed by District Consumer Forum, Ambala in complaint No.82 of 2009 which relates to the medical negligence and deficiency in service alleged by the complainant against the treating doctor while treating the respondent-complainant.
Complainant had been complaining of severe stomach pain. As per medical advice, the complainant went for ultrasound abdomen from Rajveev Ultrasound Centre, Ambala Cantt. The ultrasound report of Dr. Rajeev Gupta, M.D. Radio-diagnosis revealed that the complainant had stones in her gall-bladder.
Complainant alongwith her husband met Dr. Jatinder Gupta of Gupta Hospital, Ambala Cantt i.e. the opposite party (appellant No.2 herein), who is a qualified M.S. (Surgery). As per the advice of the treating doctor, the complainant and her husband gave their consent for Laparoscopic Surgery for which the opposite party Dr. Jatinder Gupta demanded Rs.6,000/- for the operation including medicines. It was decided that the opposite party will make certain tests on Ist December, 1997 and will finally operate on 2nd December, 1997 at 9.00 a.m. Complainant went to the opposite party Dr. Jatinder Gupta on 01.12.1997 at scheduled time and after conducting several tests, including x-ray, ECG, Blood and Urine tests, the doctor said that the complainant was to be admitted in his clinic on the next day at 7.00 a.m. for operation Laparoscopic surgery and accordingly, the complainant was admitted in the clinic of the opposite party No.1 on 02.12.1997 at 7.00 a.m. Opposite Party No.1 called Dr. Bhandari for anesthesia which was administered to the complainant at about 11.00 a.m. and thereafter the complainant was operated upon by the opposite party No.1 by Laparoscopic surgery. According to the complainant, it took four hours in the operation and after surgery, the complainant remained unconscious on 02.12.1997.
On 03.12.1997, the condition of the complainant deteriorated and ultimately on 04.12.1997 the opposite party No.1 recommended the complainant for test of Jaundice. In the test conducted by Dr. V.K. Chopra on 4.12.1997 it was reported that S. Bilirubin was reported 2.88 mg which was much more than normal. On 5.12.1997, the same test was conducted by Dr. V.K. Chopra, wherein S. Bilirubin was reported 4.5585 mg which was much more than normal. In the same test on 6.12.1997, S. Bilirubin was 5.21 mg which was very high than normal. Complaint got the same tests conducted on 7.12.1997 from Dr. Rajiv Gupta, M.D. (Radio-Diganosis)and Dr. Anju Jain, M.O. (Pathology) wherein it was revealed that S. Bilirubin (Director) 3.2 mg was much more than normal (0.25 mg). All the three doctors, Dr. Chopra, Dr. Gupta and Dr. Jain were of the medical opinion that S. Bilirubin was much higher than normal due to negligent operation done by the opposite party and not for any other reasons. On 9.12.1997 (morning), the complainant was taken to Apollo Hospital, New Delhi from the clinic of the opposite party No.1 and the doctors in the Apollo Hospital after conducting several tests and examining the patient told that the complication had arisen due to wrong treatment and gross negligence of the laparoscopic Surgeon-opposite party No.1. Thus, the complainant alleged it a case of medical negligence and deficiency in service against the opposite party No.1 and invoked the jurisdiction of the District Consumer Forum seeking direction to the opposite parties to pay compensation.
Upon notice, the opposite parties appeared and contested the complaint. In the written statement, opposite party No.1 stated that he is a qualified surgeon and did his Post Graduation in Surgery from the Government Medical College, Rajindera Hospital, Patiala in December, 1980 and is having experience of Surgery of about 18 years. The complainant was operated upon by the opposite party No.1 to the best of his ability and as per best experience and as per guidelines prescribed by various Senior Experts/authorities. It was stated that the complainant was admitted in the hospital on 2.12.1997 after preoperative work up and nominal charges were received from the complainant i.e. Rs.5500/- which included the operation charges and the staying in the hospital excluding the medicines. The complainant remained in the hospital for seven days. Reasonable time of about two hours was taken for conducting of the operation. The complainant had regained consciousness in the operation theatre and thereafter she was shifted to private room. During the post operative period the progress of the patient was satisfactory till 5.12.1997 when a faint tinge of jaundice was noticed by the opposite party No.1. Necessary investigations were performed on 5.12.1997 by Dr. V.K. Chopra, Pathologist who confirmed the presence of mild jaundice. S. Bilirubin and other necessary tests were conducted. The ultrasound examination was done on bed by Dr. Mukesh Gupta, Radiologist, revealed no dilatation of intra hepatic biliary channels and no abnormality in the abdomen. This fact was known to the complainant and her husband. On 6.12.1997, the opposite party No.1 had called Dr. V.K. Goel M.D., qualified physician of Ambala Cantt who after examining the complainant had given his opinion. In view of the absence of dilatation of Intrahepatic channels on ultrasound examination, the considered view of the physician was to wait and watch for sometime and he suggested some alterations in the treatment besides some investigations. Since the complainant was suffering from initial stage of jaundice, so several tests were conducted and bilirubin was found to be in slightly excess than normal (4.9%) which is a known complication in such like operation. The condition of the complainant was reviewed again by the opposite party No.1 and Dr. V.K. Goel Physician and the considered opinion of doctor was to refer the complainant to P.G.I. Chandigarh for further evaluation and management. Accordingly, the husband of the complainant was suggested to shift the patient to PGI, Chandigarh. But as the husband of the complainant was reluctant to take the patient to PGI Chandigarh, therefore, on the request of the complainants husband, the patient was referred to Apollo Hospitals, New Delhi.
The opposite party No.1 had prepared a detailed discharge slip on 08.12.1997 with details of the case. The said complication in case of cholecystectomy and even in open surgery is well known complication throughout the world and is supported by various authorities on the subject like the American Journal of Surgery Vol. 167, Jan, 1994 27-32, The Authoritative Book Laparoscopic Surgery in Developing Countries by Dr. T.E. Udwadia-Billiary ductal complication following Laparoscopic Cholecystectomy page 209 etc. Opposite Party No.2 in its separate written statement re-asserted the pleadings taken by the opposite party No.1 and prayed for dismissal of the complaint. It was further stated that if the allegations of the complainant in the complaint wherein it has been alleged that the opposite party No.1 was not competent to conduct the surgery in question and that he assured to the complainant to be so and the same are proved, in that case the opposite party No.2 shall not be liable and will stand absolved from any liability as per the terms and conditions of the policy.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Consumer Forum accepted complaint and granted following relief:-
So, the complaint is hereby accepted the Ops are directed jointly and severally to comply with following directions within 30 days of the receipt of the copy of this order:
a) To pay to the complainant Rs.3,00,000/- which the complainant has spent on her treatment including medicines, stay in the hospitals, traveling expenses etc.
b) To pay to the complainant Rs.10,000/- for litigation expenses.
However, the complainant will be entitled to interest @ 7.5% per annum from date of filing of this complaint till actual realization if the order is not complied within the stipulated period.
Aggrieved against the order of the District Consumer Forum, the opposite parties have come up in appeal.
We have heard learned counsel for the parties and perused the case file as well as the written arguments submitted on behalf of the respondent-complainant.
Learned counsel for the appellants has argued that the patient was admitted on 02.12.1997 in the hospital of the appellant No.1 after pre operative workup on 01.12.1997 and she was operated upon to the best of his ability as per guidelines prescribed by the various senior experts. It has come on the record that during the post operative period, the progress of the complainant-patient was satisfactory till 05.12.1997 when a Faint tinge of jaundice was noticed by the appellant No.1. Thereafter, Dr. V.K. Chopra, Pathologist, had conducted necessary investigation with respect to the disease suffered by the complainant, who confirmed the presence of mild jaundice S. Bilirubin. The ultrasound examination conducted by Dr. Mukesh Gupta, Radiologist revealed no dilation of intra hepatic biliry channels and no abnormality in the abdomen. The complication which had occurred on the patient, is a known complication in such like cases of operation.
On the other hand learned counsel for the respondent has reiterated the pleadings of the complainant as well as the finding recorded by the District Forum in the impugned order.
According, to the complainant all the three doctors i.e. Dr. Chopra, Dr. Gupta and Dr. Jain were of the medical opinion that S. Bilirubin was much higher than normal due to negligent operation done by the opposite party No.1 and not for any other reasons. But none of the above named doctors was examined by the complainant to prove her version. The documents produced on the record by both the parties, it has been clearly established that the complainant suffered jaundice after the operation which is a well known complication in such like operation cases. Even none of the doctors i.e. Dr. Chopra, Dr. Gupta and Dr. Jain have expressed any opinion about any kind of wrong/negligence on the part of the treating doctor. As per the referral slip/summary dated 08.12.1997 (Annexure C-10) given by the appellant No.1 Dr. Jatinder Gupta, to the complainant Smt. Kaushal Jain, it is established that S. Bilirubin was noticed by the treating doctor which was consistently increasing day by day. On behalf of the respondent-complainant there is no evidence on the record that the jaundice had developed after operation due to any wrong done by the opposite party No.1. It has come on the record that when the condition of the patient/complainant did not improve, then the opposite party No.1 and Dr. V.K. Goel reviewed the case and advised the complainant to shift the patient-complainant to P.G.I. Chandigarh for further treatment, however, the complainant and her husband preferred to go to Apollo Hospital, New Delhi and thereafter the opposite party No.1 had referred the patient to Apollo Hospital, New Delhi with a detailed discharge slip/discharge summary dated 08.12.1997 on the basis of which the Doctors of Apollo Hospital, New Delhi treated the patient. Thus, it a case where the patient was referred to the Apollo Hospital, New Delhi when the condition of the patient was beyond the control of the opposite party No.1 with respect to the treatment of jaundice.
It has been noticed in number of cases that when a patient does not get relief of the disease suffered by her/him, the treating doctor is blamed for medical negligence and deficiency in service but such allegations of the complainant do not make a case of medical negligence and deficiency in service in view of law settled by Honble Supreme Court of India in case cited as Kusum Sharma and others versus Batra Hospital & Medical Research Centre and others, 2010 ACJ 1444, wherein it has been observed by the Honble Supreme Court that the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. Merely, the doctor failed to diagnose the disease, cannot be a case of medical negligence or deficiency in service. It is also settled law that medical complications cannot always lead to inference of medical negligence. Support to this view can be taken from the judgment rendered by Honble National Commission in case cited as Smt. Sajini, Major Versus Chaya Nursing Home & Ors, 2012(1) CPR 111 (NC). There is no expert evidence on the record on behalf of the complainant to prove it a case of medical negligence while treating the complainant by the opposite party No.1. Hence, the impugned order cannot be allowed to sustain.
Accordingly, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 28.05.2012 President B.M. Bedi Judicial Member