State Consumer Disputes Redressal Commission
Deepak Kumar vs Satguru Partap Singh on 18 March, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 196 of 2012
Date of institution: 17.2.2012
Date of Decision: 18.3.2015
Mr. Deepak Kumar S/o Sh. Deen Dyal, resident of B-XVII-500, Sita Nagar,
Ludhiana.
Appellant/Complainant
Versus
1. Satguru Partap Singh, Apollo Hospitals, Sherpur Chowk, Ludhiana
through its Director.
2. Dr. Anupreet Gill, MD, (Medicine), Satguru Partap Singh, Apollo
Hospitals, Sherpur Chowk, Ludhiana.
3. Dr. Praful Arya (General Surgeon), Sr. Consultant, Satguru Partap
Singh, Apollo Hospitals, Sherpur Chowk, Ludhiana.
4. M/s United India Insurance Co. Ltd., 54, Janpath Connaught Place,
New Delhi 110 001.
Respondents/Opposite Parties
First Appeal against the order dated
25.11.2011 passed by the District Consumer
Disputes Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Shri Harcharan Singh Guram, Member
Present:-
For the appellant : Sh. H.S. Parwana, Advocate
For respondent No. 1 : Sh. S.K. Sandhir, Advocate
For respondents No.2&4 : Ex.-parte.
For respondent No.3 : Sh. Vaibhav Narang, Advocate
2
FIRST APPEAL NO. 196 OF 2012
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/complainant (hereinafter referred as "the complainant") has filed the present appeal against the order dated 25.1.2011 passed by the District Consumer Disputes Redressal Forum, Ludhiana(hereinafter referred as "the District Forum") in consumer complaint No.852 dated 3.12.2010 vide which the complaint filed by the complainant was dismissed.
2. The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the respondents/opposite parties(hereinafter referred as 'the OPs') on the allegations that he was suffering from stomach pain. On 30.3.2009, he suffered acute pain and consulted Dr. Ajit Sood of DMC & Hospital, Ludhiana, who advised CT Scan and gave medicines for 7 days. Then the complainant consulted OP No. 2 working with Op No. 1 and he was admitted there on 24.3.2009 and was discharged on 27.3.2009 with the advice that he should continue with the treatment and take the medicines as advised. However, the complainant again suffered pain and consulted Dr. Ajit Sood, who admitted him in DMC & Hospital, Ludhiana. However, feeling that OP Hospital would not be able to give the treatment, he got himself discharged from DMC & H and was admitted with OP No. 1. On 2.4.2009, OP No. 2 prescribed some tests and after that he was operated upon on 2.4.2009 by Dr. Praphul Arya, General Surgeon as Dr. Aridaman Ghosh, Gastro Surgeon was on leave. He remained in 3 FIRST APPEAL NO. 196 OF 2012 ICU in OP Hospital for 4 days but his TLC could not be controlled and was discharged on 14.4.2009 with an advice to come for checking in OPD after 5 days. However, on enquiry he came to know that Doctor had mis-guided him that there was a duplicate Cyst in his body since childhood. The Doctor indicated that they had treated the same and there remained only one blockage, which could be treated by medicines. It was further alleged that instead of Dr. Aridaman Ghosh, Gastro Surgeon he was operated by Dr. Praphul Arya, who was General Surgeon. It was alleged that on 18.4.2009, again his stomach was filled with fluid and he had to rush to the OP Hospital. He was given treatment for drain of the fluid on 30.4.2009. On 2.5.2009, a hole in the chest of the complainant developed and infested fluid started coming out from said hole and complainant was again admitted in the OP Hospital. After three days, the hole became more bigger. He contacted Dr. Praful Arya but he was referred to Dr. Aridaman Ghosh for further treatment and after examination Dr. Aridaman Ghosh intimated that due to short span of earlier surgery, it was not possible to operate the complainant. However, he suffered from fever and was again admitted with OP hospital when Dr. Ghosh decided to re-operate the complainant. When Dr. Ghosh decided to re-operate the complainant, the complainant and his family members were not satisfied with the treatment and took to one hospital at Goraya and Dr. Davinder Mahal operated upon the complainant and in that way, the life of the complainant was saved. The complaint has been filed against the Op Hospital and its Doctors on the allegations that OP Hospital was negligent in giving treatment to the complainant. 4 FIRST APPEAL NO. 196 OF 2012 Instead of Dr. Aridaman Ghosh his surgery was conducted by Dr. Praphul Arya, who was not Gastro Surgeon and even after operation, he did not improve, rather complications added and lateron he was successfully operated in Mahal Hospital. It has been alleged that there was deficiency in services and medical negligence on the part of the Op Hospital and its Doctors. Hence, the complaint with a direction to the Ops to compensate the complainant to the tune of Rs. 19,75,000/- alongwith compensation and litigation expenses, which includes expenses for the treatment Rs. 5,45,000/-, compensation of Rs. 12,00,000/- and litigation expenses of Rs. 30,000/-.
3. The claim was contested by the Ops. Op Nos. 1 & 2 in their joint written reply had taken the preliminary objection that the complainant had neither alleged any medical negligence on the part of attending Doctors nor any document has been brought on the record by way of any expert opinion regarding carelessness or negligence on the part of the Surgeon that he carried out any defective line of treatment. On merits, it was admitted that the complainant remained admitted in their hospital from 24.3.2009 to 27.3.2009 and was discharged in a satisfactory condition with further advice to take medicines as prescribed. However, the complainant had not made any averment regarding not taking of medicines as prescribed. Negligence on the part of the complainant to take the medicines could not be the negligence of the Doctor. It was also admitted that the complainant was admitted and was operated upon by Dr. Praphul Arya. However, it was denied that he was to be operated by Dr. Aridaman Ghosh. He remained admitted in the 5 FIRST APPEAL NO. 196 OF 2012 hospital from 2.4.2009 to 14.4.2009. He was operated upon Exploratory Laparotomy Adhenolysms excision of Cyst done on 2.4.2009 under GA. It was denied that the TLC of the complainant was not controlled by Dr. Praphul Arya. Post Operative complications do occur in certain cases but it does not necessarily lead to the conclusion that the diagnosis and treatment provided to the patient was wrong and faulty. It was denied that the complainant was mis- guided that there was a duplicate Cyst in the body of the complainant since childhood, rather, indicated that they had treated the same and there remain only one blockage. It was further denied that on 2.5.2009 a hole in the chest of the complainant developed and infested fluid started coming out from the said hole for which the complainant was again admitted in the Op Hospital. However, on enquiry by Dr. Praphul Arya, the complainant could not explain the reasons for the same. However, after examination by Dr. Ghosh, the complainant was informed that it was not possible to operate the complainant again within a short span of time. It was denied that the complainant was suffering from fever when he was again admitted in the Op Hospital when Dr. Ghosh decided to re-operate the complainant. It was denied that the complainant was not satisfied with the treatment given in the OP Hospital and he got the discharge. The OPs did not have any knowledge that he was operated upon by Dr. Davinder Mahal. However, on the basis of record, it is nowhere mentioned that the treatment given by OP Hospital was not appropriate treatment or that the Doctors were faulty in any manner. It was denied that Dr. Praphul Arya was not competent to conduct the 6 FIRST APPEAL NO. 196 OF 2012 surgery. Ultimately, it was submitted that there was no deficiency in services on the part of Ops or any medical negligence on their part. Complaint was without merit and it be dismissed.
4. Op No. 3 in its written reply took the preliminary objections that the complaint was wholly misconceived, groundless, frivolous, vexatious, liable to be dismissed; there was no specific scientific and justified allegations with regard to the deficiency or negligence in providing services against this OP; complainant had approached the Forum without report of any expert view; the complainant had filed this complaint on false allegations by claiming exorbitant amount without any basis, just to waste the valuable time of this Forum; there was no cause of action to file this complaint. This OP is MBBS, MS General Surgeon from CMC, Ludhiana and was duly registered with MCI on 8.2.1989 and was posted in OP Hospital as a Senior Consultant for the last so many years. He was also insured with OP No. 4 U.I.I.C. Ltd. under Professional Indemnity Policy No. 040100/46/08/35/00001007 for the period 8.6.2008 to 7.6.2009.
In the factual matrix, it was submitted that the complainant visited OP No. 1 hospital on 24.3.2009 and approached to OP No. 2 for complaint of abdomen pain and distension. On examination, he was advised for admission for treatment and further observations. He was admitted with Op No. 1 and after treatment for 2-3 days he was discharged on 27.3.2009. However, he again developed abdomen pain on 30.3.2009 and he got himself admitted in Emergency Ward of DMC, Ludhiana on 30.3.2009 under the 7 FIRST APPEAL NO. 196 OF 2012 supervision of Dr. Ajit Sood, who prescribed medicines for 7 days but he did not found any relief for three days. Dissatisfied with the treatment of DMC, he got himself discharged from the said hospital on 2.4.2009 and got himself admitted with Op No. 1 on 2.4.2009 and approached OP No. 2. Some tests were prescribed and she advised surgery. Then the patient was examined by OP No. 3 and on further examination, the patient was found to have signs of peritonitis with septicaemia and critically ill with CECT multiple large cystic collection with portal vein thrombosis. Diagnosis of duplication cyst of duodenum with abscess formation, peritonitis, intestinal obstruction and septicaemia was made. He was resuscitated with I/V fluids and antibiotics in emergency. A well informed written consent was taken from the patient and he underwent Laparotomy with adhenolysis and excision of cyst. The post operatively he was put on Ventilator and ICU and was discharged on 14.4.2009. It was further mentioned that the surgery was to be performed by Dr. Arindam Ghosh but he being on leave and the condition of the patient being sick that the emergency Laparotomy was required to save the life of the patient, therefore, the Surgery was performed by OP No. 3. On merits also, the same averments were reiterated and after first surgery, he was advised second surgery, he was advised second surgery but for the second surgery, he did not approach OP No. 1 and had gone to Mahal Hospital at Goraya. He also performed the surgery and after that the patient was fine. There were no findings by Mahal Hospital that the surgery conducted by OP No. 1 was defective in any manner. There was no deficiency in services or medical negligence on the part 8 FIRST APPEAL NO. 196 OF 2012 of the Ops in performing the surgery upon the complainant. Therefore, it was submitted that the complaint was without merit and it be dismissed.
5. OP No. 4 in its written reply submitted that Op No. 3 was insured with this Company giving the period the complainant was treated by OP No. 3 under Policy No. 040100/46/08/35/00001007 for the period 8.6.2008 to 7.6.2009. Otherwise, OP No. 1 submitted that they adopted the written statement filed by OP No. 3.
6. The parties were allowed by the learned District Forum to lead their evidence.
7. In support of his allegations, the complainant had tendered into evidence affidavit of Deepak Kumar Ex. CW-1, discharge summary with medical reports Exs. C-1 to C-7, CT Scan report and discharge summary of DMC Exs. C-7 & 8, reports of Op No. 1 hospital Exs. C-9 to 43, details of hospitalization expenses prepared by the complainant Exs. C-44, 45, 46 & 47, retain invoice of OP No. 1 hospital Exs. C-48 to 58, Mahal Hospital receipts Exs. C-59 to 64, Bills of DMC Exs. C-65 & 66, bills of different expenses Exs. C- 67 to 73. On the other hand, opposite parties Nos. 1 & 2 had tendered into evidence affidavit of Rajesh Gambhir, Manager Finance Ex. RW-1/A. OP No. 3 had tendered into evidence affidavit of Dr. Prafull Kumar Arya Ex. RW-3/B, certificates Exs. R-1 to 8, copy of ins. Policy Ex. R-9, literature Exs. R-10 to R-14.
8. After going through the allegations in the complaint, written replies filed by the OPs, evidence and documents brought on the record, the learned District Forum did not find any case for 9 FIRST APPEAL NO. 196 OF 2012 medical negligence on the part of the Ops and consequently, the complaint was dismissed.
9. We have heard the learned counsel for the parties.
10. In the appeal, the first point taken by the complainant is that the surgery was to be conducted by Dr. Aridaman Ghosh, who is Gastro Surgeon whereas the surgery was performed by OP No. 3, who is a General Surgeon and was not competent to conduct the Gastro Surgeries. In the written reply filed by Op No. 3, it has been submitted that no doubt that the surgery was to be conducted by Dr. Aridaman Ghosh, Gastro Surgeon but when the patient was admitted in the hospital on 2.4.2009 it was found that he was diagnosed of duplication cyst of duodenum with abscess formation, peritonitis, intestinal obstruction and septicaemia and before conducting the operation well informed written consent was taken from the patient and it being an emergency Laparotomy, was conducted by Op No. 3, who is a qualified Surgeon. He has placed on the record Degree of MBBS of Surgery Ex. R-1, then Master's Degree in Surgery Ex. R-2, Ex. R-3 is his registration Certificate with Medical Council of India. There is certificate dated 4.7.1997 Ex. R-5 issued by CMC, Ludhiana that Dr. Prafull Kumar Arya is very well trained in Laparoscopic Surgical Work. Apart from busy Clinical Work, he was also very well involved in the Under Graduate Teaching Programme. Ex. R-6 is another certificate issued by same College wherein he was found to be academically sound and professionally competent to handle all Surgical Problems. Ex. R-7 is certificate issued by Himalayan Institute of Medical Sciences , Dehradun where he worked as Assistant 10 FIRST APPEAL NO. 196 OF 2012 Professor and Professor from 1997 to 2005 and then there is certificate Ex. R-8 issued by OP No. 1 that he is empanelled with Op No. 1 since 25 March, 2005. Therefore, with having such a qualification with Master's Degree Clinically and Educationally experienced, it cannot be said that he was not a competent Doctor to perform the Laprotomy on the person of the complainant. Even otherwise during the course of arguments, the counsel for the appellant was unable to show any judgment or any Medical Literature that General Surgeon with Master's Degree and having such a vast experience with clinical work and educational field was incompetent to perform this surgery. Moreover, the allegations are simply that surgery was to be performed by Dr. Aridaman Ghosh, which was performed by this as emergency case, otherwise he has not pointed out any defect in the surgery. Although, it has been stated that second surgery was recommended only in case there was some negligence in conducting the first surgery.
11. Now we have to see it whether second surgery was the requirement or it was on account of negligence on the part of OP No. 3 to conduct the first surgery?
12. The pleadings and documents on the record show that when the complainant was admitted for the first time with Op No. 1 on 2.4.2009, he was diagnosed of duplication cyst of duodenum with abscess formation, peritonitis, intestinal obstruction and septicaemia was found and taking the informed consent of the patient, emergency Laparotomy was conducted and duplicate cyst was removed. These 11 FIRST APPEAL NO. 196 OF 2012 pleadings are corroborated on the record. Ex. C-7 is the CT Scan Report of DMC & Hospital and its reading was as under:-
"Impression:- Thick Walled proximal Jejunal Loops with Intra-Abdominal Collections-?Due to Sealed Off Perforation"
and when the complainant approached the OP Hospital, the diagnosis of OP No. 1 hospital is in the Discharge Summary Ex. C-8, which reads as under:-
"Diagnosis:
- Hemorrhage and infection in duplication cyst of small bowel causing adhesions, obstruction and peritonitis with septicaemia
- Portal vein thrombosis? Cause"
and in the Hospital Course, it was observed as under:-
"Patient was admitted in this hospital with above mentioned complaints. Patient was examined clinically and investigated thoroughly. CECT abdomen was done which showed large multiloculated cystic lesion in mesentery with PV thrombosis. Patient was taken up for exploratory laparotomy done on 2/4/2009 by Dr. Prafull Arya in which adhenolysis and excision of cyst was done. Patient was put on ventilator after laparotomy. He was extubated on 4.4.2009. Multiple units of PRBC were transfused. Post operatively, he was managed with IV antibiotics, PPIs, antiemetics, analgesics, multivitamins, IV fluids and other supportive measures. His post operative stay was uneventful and is now being discharged in stable condition."12
FIRST APPEAL NO. 196 OF 2012
13. Then the complainant had again approached this Hospital on 25.4.2009, some diagnosis was done and CT Scan was recommended, which was done on 3.5.2009 and its observations are as under:-
"Surgical defect is seen in the anterior abdominal wall in the mid-line with thickened subcutaneous tissue with streakiness seen in the adjoining fat in this region with a few air pockets. The underlying bowel loops are abutting the inner abdominal wall underneath the site of surgery."
and in Ex. C-38, there are findings given by this Hospital that the patient had complained of abdomen pain and abdomen distension for two days and was clinically evaluated and thoroughly investigated by DR. A. Ghosh. Patient did not consent for surgery and was discharged against medical advice. Therefore, second surgery was recommended by Dr. A. Ghosh, who is Gastro Surgeon but the patient did not offer that and got discharge against medical advice and second surgery was then got done by the complainant from the Mahal Hospital, Goraya. The discharge record of the Mahal Hospital has not been placed on the record. There are no finding that there was no duplicate Cyst in the abdomen, which was operated by the Op Hospital and whether the second surgery was not required. It was required that is why it has been done by Mahal hospital. There is no evidence on behalf of the complainant that second surgery was required on account of some negligence on the part of Op No. 1 hospital. The counsel for the respondents has relied upon certain judgments 2011(1)CPC 69 "Manager/Management, St. Stephen's 13 FIRST APPEAL NO. 196 OF 2012 Hospita; versus Manohar Lal Thakur" wherein the District Forum had held that the petitioner cannot be held guilty of medical negligence merely because it pursued a particular line of treatment, which was different from one adopted in treating his case in another hospital. Complaint was dismissed. Appeal was allowed and in the Revision, order of the District Forum was restored. Then a reference has been made to 2010(1) CPC 507 "Jagnarayan Lal versus Dr. Girija Tewari"
in which it was observed that there was no expert evidence produced in support of negligence. Proper line of treatment adopted by the opposite Doctor. Other doctor adopted another line of treatment, it does not prove medical negligence. Medical practitioner can be held liable only if his conduct fell below the standard of a reasonably competent practitioner in his field. In another judgment 2010(1) CPC 259 "Prabha Shankar Ojha versus Dr. Neelamani Rai" in which it was held that burden to prove negligence was on the petitioner/complainant. He could not prove the factum of negligence or treatment by any expert evidence. Even another hospital has applied the same method of treatment. Due care was taken in the treatment. It was found that OP was not guilty of causing any damage to health of the petitioner. Mere difference in opinion in adopting line of treatment by different Doctors is not a case of medical negligence. In another judgment 2010(2) CPC 336 "B.K. Sharma versus Bharti Eye Fouundation & Anr.", it was observed that it was the Doctor, who is best judge to decide the treatment. In that case, blood sugar status and its effect on the patient. Merely that the patient did not respond favourably to the treatment does not prove that there was any 14 FIRST APPEAL NO. 196 OF 2012 negligence on the part of the Surgeon. Therefore, no case of medical negligence was made out against the respondent. In another judgment reported in 1(201)) CPJ 62 (NC) "Prabha Shankar Ojha versus Neelmani Rai (Dr.)". It was again reiterated by the Hon'ble National Commission that there was no expert evidence produced in support of defective line of treatment adopted by the Doctor. Medical negligence is not made out.
14. Here also there is no evidence produced by the complainant that second operation was necessary as the first surgery conducted by OP Hospital was defective one. Even the operation notes of Mahal Hospital have not been produced on the record. Second surgery was the requirement as recommended by the Op No. 1 Hospital. It was sweet will of the complainant that he did not choose this hospital and had gone to Mahal Hospital where the surgery was conducted and he was all right, therefore, we are of the opinion that the learned District Forum has rightly appreciated the evidence on the record and has come to the conclusion that the complainant has not produced any cogent evidence on the record to prove that second surgery was required only in case the first surgery conducted by the Op hospital was negligent.
15. Another point was taken that no informed consent was taken by the OP hospital before conducting the first surgery but these allegations have been rebutted by OP No. 3 in its written reply. The complainant has produced the entire record of his treatment but he has not placed on the record the document with regard to the consent taken for the purpose of treatment. No application was ever given by 15 FIRST APPEAL NO. 196 OF 2012 the complainant either before the Hospital to supply those documents or before the District Forum during the pendency of the trial with the direction to the Op to bring on the record the consent form of the complainant before conducting the first surgery on the person of the complainant.
16. In view of the above, we are of the opinion that the complainant has not been able to prove any case of medical negligence. Complainant's treatment was given by the Op hospital according to the standard medical procedure. We are of the opinion that the findings so recorded by the District Forum are correct. We affirm the same.
17. In view of the above discussion, we do not find any merit in the appeal, which is hereby dismissed with no order as to costs.
18. The arguments in this appeal were heard on 11.3.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
19. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member March 18, 2015. (Harcharan Singh Guram) as Member