State Consumer Disputes Redressal Commission
Daljit Kaur W/O Sh. Shingara Singh, R/O ... vs 1. Shah Hospital, Opposite Bus Stand, ... on 20 December, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No. 1310 of 2011 Date of Institution: 19.09.2011 Date of Decision: 20.12.2012 Daljit Kaur w/o Sh. Shingara Singh, R/o ward No. 5, Shakti Nagar, Cheeka, Tehsil Guhla, District Kaithal. Appellant/ Complainant Versus 1. Shah Hospital, Opposite Bus stand, Kaithal through its Proprietor Dr. Mohinder Singh Shah. 2. Dr. Mohinder Singh Shah, Proprietor Shah Hospital, Opposite Bus stand, Kaithal. 3. Dr. (Mrs) Kiran V. Kumar M.B.B.B.S.D.G.O. Obstetrician and Gynecologist ladies specialist, Partner/employed at Shah Hospital, Kaithal Respondents/OPs 4. United India Insurance Company through Insurance Consultant Ltd, 54, Vinobha Puri, Lajpat Nagar-II, New Delhi. Performa Respondent BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the parties: Mr.Varun Chawla, Advocate, for the appellant Mr. Sidharath Gulati, Advocate, for the respondents O R D E R
B.M. BEDI, JUDICIAL MEMBER:
Present appeal has been filed against the order dated 3.8.2011 passed by the District Consumer Forum, Kaithal vide which Complaint No.141 of 2008 filed by the appellant-complainant against the respondents-opposite parties alleging medical negligence and deficiency in service while treating the appellant-complainant, was dismissed.
In brief, the facts of the present case are that complainant felt pain in her abdomen and went to the hospital of OP no.1 where she met Dr. Mohinder Singh Shah opposite party no.2, who advised the complainant to get herself medically checked up from Dr. Kiran V. Kumar opposite party no.3. After medical check up, OPs reported that there was a uterus stone in the abdomen of the complainant. It was further reported by the OPs that for curing the said disease, operation was necessary for removal of uterus. Thereafter, a sum of Rs.50,000/- was deposited by the complainant with the Ops in lump sum but no receipt and medical bills were issued to the complainant. On 24.9.2007 operation for removal of stone of the complainant was conducted by Dr. Kiran V. Kumar, Gynaecologist. Complainant remained in the hospital of OPs w.e.f. 24.9.2007 to 28.9.2007. According to complainant she was discharged from the hospital against her wishes by the OPs with the assurance that she would get relief from pain within few days. Since complainant did not get relief from the pain in her abdomen as well as other parts of body, she again visited the hospital of OPs on 2.10.2007 and after check up, OPs advised the complainant to continue consuming the medicine given by them and also further advised to get herself checked up from time to time. Thereafter, complainant remained in contact of the OPs for her check up but still the complainant suffered pain in Urinary bladder. Thereafter, OPs advised the complainant to get herself check up at Mittal Hospital, Kaithal. Doctor of Mittal hospital came in the hospital of OPs and treated the complainant but she did not get any relief from pain. OPs no.2 and 3 alongwith Dr. Mittal conducted the second operation of complainant, but complainant did not get any relief from pain. Thereafter, OPs advised the complainant for further treatment from any other hospital. According to complainant, OPs failed to get the operation of complainant successfully done and they made a puncture in the urinary bladder during the course of operation, which was conducted by OPs carelessnessly and negligently.
Thereafter, complainant was admitted in Kidney Hospital/Centre Chandigarh, where she paid Rs.43,000/- plus medicines expenses and Rs.30,000/- transportation expenses etc., Rs.14,000/- as second time check up and Rs.7300/- as operation charges besides other expenses. It was alleged by the complainant that doctor of Kidney Centre, Chandigarh reported that while conducting the operation of abdomen Hysterectomy (stone), OPs had negligently punctured the urinary bladder and also damaged the kidney of complainant, which was a permanent disability. As per version of the complainant she spent Rs.4,84,300/- upon her treatment. Thus, alleging it a case of medical negligence and deficiency in service, the complainant invoked the jurisdiction of the District Forum.
Upon notice, the opposite parties appeared and contested the complaint. In the written statement filed by the opposite parties No.1 to 3 jointly, they took the plea that it was a case of lump in lower abdomen with off and on retention of urine for the last 2/3 years with Metrorrhagia (heavy menses). During second visit of the patient on 27.11.2007, when stent was removed by Dr. Mittal, it was explained to the patient that she might be suffering from VVF and was advised for routine check up. It was denied by the Ops that complainant was discharged against her wishes. According to OPs, as per abdomen examination there was lump in lower abdomen and as per vaginal examination, uterus was bulky, anteverted, non tender with tender lump felt at the cervix region.
Abdomen lump was found moveable with movement of uterus. After complete examination, the complainant was advised for all the necessary tests and according to test reports USG abdomen and pelvis showed multiple fibroids with nabothain cyst of cervix. Rests of abdominal organs of the complainant were found normal. After going through the test reports, the patient was advised for operation and all the risk factors relating to the operation were disclosed to the patient and thereafter the consent for operation was given by the complainant. The patient was found fit for surgery after being examined by Dr. Sanjeev Jindal, Anesthetist. Under spinal anesthesia by Dr. Sanjeev Jindal, surgery was performed abdominal Hysterectomy on 24.9.2007 at 4.oo P.M in the hospital of Ops, a duly equipped OT with latest instruments.
At the time of operation urinary bladder was found adhered with uterus and with great difficulty bladder was pushed down to remove the nabothian cyst of cervix. After clamping all the great vessels and transfixing the ligaments uterus along with cervix was removed. After achieving complete Haemostasis abdomen was closed in layers after counting mops and instruments, OP duly informed the husband of complainant after operation by OP No.3, that the patient might face urinary problem in future. Due to reason as explained aforesaid, second opinion was also sought by OP no.3 with the help of Dr. A.K. Mittal (Senior Uro Surgeon at Kaithal) and then it was decided to perform Cysto urethroscopy and the same was done by Dr. A.K. Mittal under spinal anesthesia by Dr. Sanjeev Jindal and stent were inserted and then urine was found easily passing. After that abdomen was closed in layers and operation was successful and patient was found alright. The patient was discharged on 28.9.2007 with catheter in urinary bladder and advised for weekly visit. The patient came for follow up and suture line found to be healthy, again patient visited the hospital of OPs on 27.11.2007 where stent was removed by Dr. A.K. Mittal and it was explained to the patient and her attendants that she might be suffering from VVF (Vesico Vaginal Fistula) and therefore she was advised for routine check up. OP No.3 is MBBS, DGO (Mumbai) having six years experience as Gynaecologist and had already handled several patients of such like complications. Thus, denying any kind of deficiency in service and medical negligency on the part of opposite parties, it was prayed that complaint be dismissed.
Opposite party no.4 did not appear and was proceeded against exparte vide order dated 8.6.2009.
Both the parties led evidence in support of their respective claims.
On appraisal of pleading of the parties and evidence adduced on record, the District Forum did not find any substance in the version of the complainant and dismissed the complaint.
Dis-satisfied with the order of the District Consumer Forum, the appellant-complainant filed the present appeal for setting aside the impugned order and for acceptance of the complaint.
We have heard the Learned Counsel for the parties and perused the case file.
On behalf of the appellant-complainant, the impugned order has been assailed on the following grounds:-
The report of the Fortis hospital is very clear showing a puncture in the urinary bladders. The opposite parties No.1 to 3 had operated the complainant for the removal of the stone but later on showed it a case of lump in lower abdomen and VVF (Vesico Vaginal Fistula). In fact the surgery for removing the stone was not conducted by the opposite parties though the complainant was charged for the same. After first surgery, another surgery was done to remove the uterus alongwith cervix but when the complainant did not get any relief, the opposite parties No.1 to 3 conducted Cysto urethroscopy and inserted a stent and abdomen was closed. Thereafter, on 27.11.2007 the stent was removed. The contention raised on behalf of the appellant-complainant is that during the whole process, nothing was disclosed to the complainant that the treating doctors had damaged the urinary bladder and kidney. Thus, the case of the complainant is that the opposite parties were negligent while performing surgery due to which a kidney of the complainant was damaged and a puncture in the urinary bladder developed.
District Forum while dismissing the complaint observed that there is no expert opinion with respect to negligence and deficiency in service on the part of the opposite parties and that certificate was not taken from Kidney Centre, Chandigarh to the effect that the treating doctors (opposite parties) had punctured the urinary bladder and damaged the kidney of complainant while conducting the operation of abdomen Hystrectomey (stone).
It is admitted case of the opposite parties that patient (complainant) Daljeet Kaur had come to the hospital of the opposite parties as a case of Lump in lower abdomen with off and on retention of urine since 2-3 years with metrorrhagia (meavy menses). It is further the case of the opposite parties that as per abdomen examination, as per vagina examination, uterus was bulky, anteverted, non tender with tender Lump felt at the cervix region. The patient was operated after necessary tests/examination with the help of Dr. Sanjeev Jindal-Anaesthetist of Shah Hospital, Kaithal. The opposite parties have taken the plea that at the time of operation urinary bladder was found adhered with uterus and with great difficulty bladder was pushed down to remove the nabothian cyst of cervix. They have further stated that after clamping all the great vessels and transfixing the ligaments uterus along with cervix was removed and it was told to the patient that she might face urinary problem in future. No urine out put was found for next few hours after operation. The opposite parties have taken the plea that Dr. A.K. Mittal (Senior Uro Surgeon at Kaithal) was called, who performed Cysto urethroscopy under spinal anaesthesia by Dr. Sanjeev Jindal and stent were inserted. The patient was discharged on 28.09.2007 with catheter in urinary bladder with advice for weekly visit. On 27.11.2007 the stent was removed by Dr. A.K. Mittal.
It is recorded in the record of Shah Hospital that After 1 month stents were removed but there is evidence of VVF. Advised: To keep cather for 3 months. Review after 1 month.
The record of KIDNEY CENTRE, SCO 332-334, Sector 34-A, Chandigarh on the file reflects that .(not legible). VVF repair SA/Epidira .bladder cut opened.
Though the opposite parties have taken the plea that the patient was operated by Dr. A.K. Mittal for the second time, but the scrutiny of the treatment record of patient-complainant from SHAH HOSPITAL nowhere reflects that Dr. A.K. Mittal had operated the complainant for the second time. This stand has been taken by the opposite parties for the first time in their written statement but the record does not says so. Thus, the evidence available on the record may be fatal to the defence of the opposite parties, being an afterthought version of the opposite parties. VVF (Vesico Vaginal Fistula) means that if there is cut during operation and the same is left as it is, it would form V.V.F. It is not the case of the opposite parties that there was any evidence of VVF prior to the first operation of the patient and therefore it was for the opposite parties to disclose as to how VVF had developed to the patient. The facts and circumstances of the case and evidence available on the record makes it clear that the VVF had developed to the patient after the operation conducted by the opposite parties but the opposite parties are trying to take shelter of the fact that the second operation was conducted by Dr. A.K. Mittal. No evidence is available on the record to show that Dr. A.K. Mittal, ever had performed operation of the complainant. The entire record which could prove defence of opposite parties that Dr. A.K. Mittal conducted surgery and inserted stent, has been withheld by the opposite party. Thus, it is case where the opposite parties have acted in negligent manner and have taken false plea to save their skin from their liability to compensate the complainant for the wrongs committed by them. District Forum has failed to appreciate all these facts of the case, hence, the impugned order cannot be allowed to sustain.
As a sequel to our aforesaid discussions, this appeal is accepted, impugned order is set aside and by allowing the complaint direction is given to the opposite parties to pay Rs.5,00,000/- to the complainant besides Rs.22,000/- as cost of litigation. The order be complied within two months from today failing which the awarded amount would carry interest @ 9% per annum from the date of this order till its realization.
Announced: Justice R.S. Madan 20.12.2012 President B.M. Bedi Judicial Member