National Consumer Disputes Redressal
Reetu Jhamat vs M/S. Neelkanth Hospital & 2 Ors. on 15 May, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 2661 OF 2017 1. REETU JHAMAT ...........Complainant(s) Versus 1. M/S. NEELKANTH HOSPITAL & 2 ORS. Neelkanth Hospitals Private Limited, No.1 Main Mehruli- Gurgaon Roadm DLF Phase-3, Near Guru Dronahcarya metro Station, Gurgaon-122002 haryana. 2. Dr. Subrat Saxena Surgeon, Neelkanth Hospitals Private Limited DLF Phase-3 Near Guru Dronacharya Metro Station, Gurgaon-122022 HARYANA 3. Dr. Himanshu Garg Neelkanth Hospitals Private Limited DLF Phase-3 Near Guru Dronacharya Metro Station, Gurgaon-122022 ...........Opp.Party(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER
For the Complainant : Mr. Niranjan Maurya, Advocate For the Opp.Party : For the opposite parties Nos.1 & 3 : Mr. Harsh Kumar, Advocate
For the opposite party No.2 : Dr. Subrat Saxena, in person with
Mr. Sanjay Agarwal, in person
Dated : 15 May 2018 ORDER
DR. S. M. KANTIKAR, MEMBER
1.This complaint has been filed under Section 12 of the Consumer Protection Act, 1986 alleging medical negligence on the part of opposite parties.
2. The brief facts are that on 3.8.2016, the complainant, Reetu Jhamat (for short, 'patient') approached Dr. Subrat Saxena/OP-2 at M/s Neelkanth Hospital for her abdominal pain. After ultrasound (USG) study, she was diagnosed "Cholelithiassis" i.e. Gall bladder stone (multiple small gall bladder stone). She underwent laparoscopic Cholecystectomy on the same day and discharged from the hospital/OP-1 on 5.8.2016. Again, she suffered severe pain in operated area, therefore, she was admitted in OP-1 on 7.8.2016. After investigation, the doctors found that large amount of fluid was collected in the abdomen and lungs. The Magnetic resonance cholangiopancreatography ( for short, 'MRCP') was done and reported as segmental irregularity and narrowing of common hepatic duct immediately distal to the confluence with fluid extravasation from the proximal end into the porta hepatis and ascites.
3. Therefore, the complainant alleged that during procedure, the OP has injured a common hepatic duct which caused pleural effusion and other complications. It was alleged that the OP-2 failed to identify the complications immediately. The patient was discharged from OP/Hospital on 10.8.2016. On the same day, patient was taken to Medanta Hospital, Gurgaon (for short, 'Medanta') and was kept under observation. The MRCP was performed, it diagnosed Biliary fistula and lung bases revealed bilateral mild pleural effusion (Left>right) with underlying subsegmental areas of collapse consolidation. There was mild leakage in the biliary common hepatic duct. Initially, patient was not operated at Medanta Hospital. She was again admitted to Medanta on 21.8.2016. The USG performed, revealed loculated collection in subhepatic and periportal region with mild perihepatic fluid. Therefore, the complainant was again admitted on 24.08.2016, which revealed similar findings and 80 ml fluid was drained. The complainant was admitted again on 5.9.2016, her MRCP was performed. It revealed Post Cholecystectomy status with leak primary biliary confluence. A large biloma in the left posterior perihepatic and extending into right anterior perihepatic region with minimal pleural effusion at right side. Thereafter, on 17.09.2016, the patient got admitted and 360 Ml. of fluid was drained from the abdomen. Thereafter, on 15.12.2016 for follow up procedure, patient was taken to Medanta Hospital again. Thereafter, on 3.2.2017, the patient was admitted in Medanta Hospital and MRCP was performed. It revealed a very small cystic area just subjacent to biliary confluence and moderate bilobar intrahepatic biliary ductal dilation with separated biliary confluence. Again, the patient was called on 7.2.2017 for admission for surgery and she was operated successfully on 8.12.2017 for exploratory laparotomy with hepatico-jejunostomy. The complainant alleged that the entire complications arose because of medical negligence caused by the OP/doctors. The complainant filed a complaint before Haryana State Medical Counsel against the OP-1/Hospital on 13.12.2016. Thereafter, the complainant has filed a complaint before this Commission on 11.09.2017 for compensation of Rs.1,10,06,768/- under different heads
4. The show cause notice was issued for pre-admission hearing. We have heard the learned counsel for both the parties. OP-2 was present in person. The counsel for the complainant stated that the patient suffered due to negligence of Dr. Subrat Saxena and his team while performing Cholecystectomy operation at Neelkanth hospital wherein the hepatic duct of the patient was cut, causing continuous biliary leak. Therefore, the patient was referred to Medanta Hospital and took treatment from 10.08.2016 to 8.2.2017. The patient was frequently admitted and underwent several investigations and different procedures like MRCP aspirations of fluids from lungs and abdomen were undertaken. Finally, on 8.2.2017, the patient underwent major surgery i.e. Exploratory of laparotomy with hepatico-jejunostomy at Medanta Hospital. The patient incurred heavy medical expenditure approximately Rs. 7 lakh. The counsel further submitted that the patient lost her job and future career, also her husband's job. The patient including herself and family members, her child aged about four years suffered severe mental agony.
5. Learned counsel, Mr. Harsh Kumar for OPs 1 and 3 submitted that the hospital facilities are good and there were no lapses in the quality of treatment and the patient was treated carefully. The complainant has filed the instant complaint with mala fide intention with highly inflated claim having no basis, therefore, it deserves to be dismissed.
6. OP-2/Dr. Subrat Saxena himself was present in person and submitted that the operation was performed as standard of practice. It was uneventful. The patient was suffering from multiple gall stones and, therefore, the operation was necessary. There are no procedural mistakes while performing the operation. He has treated the patient with all due and standard care throughout her hospitalization at OP-1.
7. Learned counsel for the complainant was specifically asked and directed to file an affidavit how she arrived the claim of compensation to the tune of more than one crore. He was also directed to submit the details of claim under different sub-headings. It is surprising to note that the complainant had initially claimed Rs.75 lakhs on account of mental agony and thereafter in the affidavit, the complainant has explained it under different head of general damages.
GENERAL DAMAGES (NON-PECUNIARY) 10 Pain and suffering, loss of amenities by Complainant (unbearable pain suffered by her, Puncture of Stomach 08 times during admission due to drain blockage & without anesthesia it was taken place, Mental & Health loss and career loss factor also.
Rs.40,00,000/-
11Mental Agony to Husband and Five year old Child Rs.15,00,000/-
Moreover, she has claimed loss of salary from August, 2016 to September, 2017 (14 months) to the tune of Rs.21,460/- per month amounting to Rs.3,21,900/-. Similarly, her husband lost the salary around Rs.60,000/- during the said period. However, she has not produced her salary certificate to prove her bona fide. The complainant is also claiming Rs. 20 lakh for the loss of income in future (four years). We are unable to understand which nature of suffering in the future will cause loss of Rs. 20 lakh. Moreover, the complainant is present before us during the arguments and she appears to be healthy. She did not suffer from any deformity.
8. No doubt, it is an admitted fact from the medical record that the patient was initially treated at OP-1/Hospital and thereafter, due to some complications, she took treatment in the Medanta Hospital. Thus, she was under continuous treatment from 3.8.2016 to 8.2.2017. The patient had incurred approximately about Rs. 8 lakhs towards the medical treatment. However, to justify her claim of more than one crore, she failed to place any cogent evidence or the salary certificate or her income certificate. In our view, the complaint was filed with the inflated claim to confer the jurisdiction of this Commission.
9. On the basis of foregoing discussion, in our view, the complaint did not fall under jurisdiction of this Commission and therefore, it stands to be dismissed. The complainant has made unrealistic claim only with a view to confer jurisdiction of this Commission, which cannot be permitted. In the interest of justice, we restrain ourselves to comment on the merits of the instant case of alleged medical negligence. Therefore, the complaint is hereby dismissed with liberty to the complainant to file a complaint before proper forum other than this Commission. So far as the point of limitation is concerned, the complainant can take help from Laxmi Engineering Works v. P.S.G. Industrial Institute 1995 (3) SCC 583.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER