State Consumer Disputes Redressal Commission
Mrs. Manmohan Kaur vs M/S Escorts Heart Institute & Research ... on 7 September, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.58 of 2013
Date of institution : 31.05.2013
Date of decision : 07.09.2015
Mrs. Manmohan Kaur w/o Shri Gajinder Singh, R/o H.No.319,
Sector 32-A, Chandigarh.
.......Complainant
Versus
1. M/s Escorts Heart Institute & Research Centre, Okhla Road,
New Delhi-110 025 through its Managing Director.
2. M/s Fortis Hospital, Sector 62, Phase-VIII, Mohali-160 062
through its Managing Director.
3. Dr. Arvind Sahni, M.D. DM, MRCP (UK), Director-
Gastroenterology of M/s Fortis Hospital, Sector 62, Phase-
VIII, Mohali-160 062.
4. Dr. J.D. Wig, Surgeon, M/s Fortis Hospital, Sector 62,
Phase-VIII, Mohali-160 062.
........Opposite Parties
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection
Act, 1986.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Shri Baldev Singh Sekhon, Member
Present:-
For the complainant : Shri Vikas Sharma, Advocate. For opposite parties Nos.1,2&4 Shri Munish Kapila, Advocate. For opposite party No.3 : Ms. Alka Sarin, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The complainant, Mrs. Manmohan Kaur, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Consumer Complaint No.58 of 2013 2 Act, 1986, for directing the opposite parties to pay Rs.51,73,565/- jointly and severally, along with interest at the rate of 18% per annum from the date of test i.e. 4.7.2012 till the realization of that amount and to pay the cost of the complaint. She alleged therein that she started having stomach pain in December 2006 and was having problem with her digestive system (irritation in the stomach/food pipe). She consulted Dr. Neeraj Nagpal of Hope Gastrointestinal Diagnostic Clinic, Chandigarh and the treatment by that Doctor continued from February 2007 to April 2008. On account of that treatment, she was recovered to much extent but was not completely relieved. She went to M/s Fortis City Centre, Chandigarh and consulted Dr. Arvind Sahni, opposite party No.3 in May 2008. Many tests were conducted, including Gastroscopy and the treatment continued for 9 months. She felt some relief but not complete relief. She also consulted Dr.Sandeep Dhawan of Dhawan's Jeevandeep Nursing Home, Chandigarh, who also suggested various tests, including Video UGI Endoscopy; which was duly conducted on 29.7.2011 and secondly on 3.3.2012. She was not completely relieved and accordingly decided to again consult opposite party No.3. She was taken by that opposite party No.3 to the Hospital on 16.5.2012 and suggested to go for various tests i.e. Blood Tests, Histopathology, Endoscopy, Barium Tests, Food Allergy Tests; from time to time. On 20.6.2012 that opposite party suggested for M.R.C.P. and colonoscopy test. The M.R.C.P. was done on 21.6.2012 and she was called for colonoscopy on 4.7.2012. She was hesitant to go for the same as it was an invasive test, which is done with the help of Consumer Complaint No.58 of 2013 3 Colonoscope through anus. However, she was assured by opposite party No.3 that no harm would be done to her if that test was conducted and it was on his assurance that she agreed to go for the same. On 2.7.2012 that opposite party asked her to take peglec powder so that the colonoscopy test could be conducted and she took that powder on 4.7.2012. She was taken to the laboratory where that test was conducted. The colonoscope was inserted through the anus and was taken to the large intestine/colon. During that period opposite party No.3 did not take all the precautions, duly required from a Specialist and as a result thereof, there was rupture of the portion of colon. She felt rupture immediately in the form of severe pain, which was neglected by that opposite party and despite her repeated requests the procedure was not discontinued; as a result of which her condition deteriorated. Her abdomen swelled like a football and there was acute pain therein and she became unconscious. She was transferred from the laboratory to ICU at about 1.00 P.M. and was put on oxygen and life saving devices/drugs. After some time opposite party No.3 advised her family members that operation was to be conducted in order to save her life and they were advised to have IPD card by depositing Rs.10,000/-. When that formality was completed, her family members were further advised to visit Counselling Branch for knowing the charges of operation. Her husband went to that Branch and details of the charges were given to him and a sum of Rs.1,30,000/- was charged; which included Rs.11,100/-, as operation charges and Rs.11,100/-, as surgery extra items. That money was arranged Consumer Complaint No.58 of 2013 4 with the help of relatives and friends, as her life was at stake. The operation was conducted by Dr. J.D. Wig, opposite party No.4 and she remained admitted in the Hospital for 5 days. It was mentioned by that Doctor in the operation notes and the diagnosis that the pain in the abdomen and distention of abdomen was felt by her immediately after the colonoscopy procedure and on opening abdomen a perforation of the size 0.5 cm x 1 cm longitudinally was noted in the sigmoid colon resulting in pneumoperitoneum (collection of air in peritoneal cavity); which was sealed. The perforation was obviously created by the negligent procedure of colonoscopy performed by opposite party No.3, who failed to take all the precautions while conducting that test. The comparison of the report of that test and the prescription slip do not correlate with each other and that also shows that there was negligence on the part of that opposite party, who used force while inserting the colonoscope from one part/colon to the other, which resulted in the said rupture. After the operation, her follow- up treatment was conducted from opposite parties Nos.3 and 4. Thereafter there was change in the attitude of opposite party No.3 and he got started prescribing irrelevant tests i.e. C.T. abdomen plain and bone mineral density; which were not at all relevant. The systematic attitude of that opposite party changed to irritable and aggressive; which resulted in mental tension and agony to her. It is a case of res-ipsa-liquitor, as serious complications are uncommon in such like tests and that speaks of the force used and the negligence committed by opposite party No.3, who failed to discharge his duties properly. There was defect and deficiency Consumer Complaint No.58 of 2013 5 in service on the part of opposite parties Nos.1 to 3. The Hospital took a chance to defraud her by charging excess amount by raising the bill of Rs.1,17,632/- and by giving an oral direction to deposit Rs.25,000/- more. That was inflated bill in order to extract money from her. A sum of Rs.45,750/- was shown in the bill for surgery/procedure whereas it should have been Rs.11,100/- plus extra items. Similarly the rent of the room was enhanced from Rs.19,575/- to Rs.23,250/-. It was only after great difficulty that the concerned Department agreed to charge the proper amount. Even the final bill dated 9.7.2012 was inflated bill. The amount of surgery/procedure was shown as Rs.36,600/- against Rs.11,100/-. Her family members deposited Rs.13,565/- under protest and it was only thereafter that she was discharged from the room at about 10.00 A.M. and was allowed to leave the Hospital. She and her family members were made to suffer and excessive amount was charged from them. On account of the wrong test and the abdomen operation, she was unable to continue with her normal life/routine, to which she was used to prior to that test. She is unable to walk properly and cannot take proper food and her capacity to work has decreased and now she cannot work for longer durations. She has become dependent upon others and has employed a servant for assistance. Even her life has been shortened. In fact, she had no problem of gastroenterology but opposite party No.3 continued with the treatment for the same. She suffered mentally, physically and financially at the hands of opposite parties and, as such, she is entitled to Rs.50,00,000/-, as compensation and is entitled to recover the amount which has Consumer Complaint No.58 of 2013 6 been paid by her to them in respect of the treatment.
2.Shri Munish Kapila, Advocate, appeared before this Commission on behalf of opposite parties Nos.1, 2 and 4, whereas Mrs. Alka Sarin, Advocate, appeared on behalf of opposite party No.3. Opposite parties Nos.2 and 4 filed joint written reply, whereas opposite party No.3 filed independent written reply. No reply was filed on behalf of opposite party No.1 and application was filed for the deletion of that opposite party from the array of opposite parties, but the same was never pressed at any stage.
3. Opposite parties Nos.2 and 4 in their written reply did not dispute that the complainant was ailing due to stomach problem since December 2006, for which she consulted numerous doctors. They admitted that she was under the treatment of opposite party No.3, who conducted colonoscopy test and that she was admitted in the Hospital where the surgery was performed by opposite party No.4 and she was asked to pay the hospital expenses, which were duly deposited by her. While denying the other allegations made in the complaint, they averred that since the complainant was suffering from abdominal pain with little or no relief since 2006, so, as per the standard protocol accepted world over and keeping in mind various factors, opposite party No.3 suggested various tests, including colonoscopy. In addition to the other problems, the complainant had also complained of bloody stools. The colonoscopy was conducted by opposite party No.3 as per standard procedure and protocol accepted all over world. This colonoscopy is a diagnostic procedure, which allows the Doctor to look at the inner lining of the large intestine (rectum and colon) Consumer Complaint No.58 of 2013 7 and a thin flexible tube, called a colonoscope, is used for the procedure and is meant for detecting ulcers, colonpolyps, tumors and areas of inflammation or bleeding and also for checking the cancer or pre-cancerous growth in the colon or rectum. After conducting the colonoscopy, opposite party No.3 recorded his findings in detail. As per that report, the complainant was suffering from diverticulum of sigmoid colon. There was diverticulum, which was formation of pouches within the bowel wall and one of these diverticulum becomes inflamed. The same was called diverticulitis. The sigmoid colon has a smallest diameter of any portion of the colon and, therefore, the said portion would be accepted to have the highest intra-luminal pressure. The complainant had diverticulum as well as adhesions, which contributed to the sigmoid perforation. The sigmoid perforation was during the colonoscopy, which is well documented complication and there were several factors, which make the wall segment vulnerable to be injured due to a sharp angulation, which is either at the rectosigmoid junction or at the sigmoid descending colon junction and also due to great mobility of the sigmoid colon. Even the pelvic adhesions, following previous pelvic operation or infection, also contribute to a high incident of sigmoid perforation. In the case of the complainant it was apparent that she had adhesions of sigmoid to the lateral pelvic wall and the adhesions had to be surgically lysed. There was no way to determine adhesions non-surgically. During the procedure of colonoscopy, the complainant did not suffer pain and she never requested for the discontinuation thereof. It was only after the procedure was Consumer Complaint No.58 of 2013 8 completed that she showed the signs of pain and distention. She was conscious and well oriented to the time, place and person. She was immediately taken in for surgery for the closure of sigmoid perforation and peritoneal toilet under general anaesthesia. She was attended to as per the standard protocol, which is accepted world over and which is a procedure followed all over the world. She was admitted as indoor patient and was duly managed. The operation was conducted without any post operative complication and she was stable and, as such, was discharged on 9.7.2012. She was advised to come for follow-up action after 7 days and when she came up for that purpose her clips were removed and her wound had healed. The present case is clear case of complication, which was managed as per the standard protocol world over and the complainant was attended to and treated accordingly. There is no allegation in the complaint that there had been any deviation by opposite party No.3 from the acceptable and recognized medical practice or line of treatment. No negligence has been attributed to opposite party No.4. Nothing has been stated in the complaint as to what were the acts of omission or commission committed by the Doctors and the Hospital, which may amount to medical negligence. Opposite party No.3 is well qualified Doctor to handle such like cases and he did everything correctly. There was no such negligence on their part. It was explained to the attendants of the complainant that the cost of surgery would be Rs.1,30,000/- approximately and only Rs.10,000/- was got deposited at the time of admission and Rs.1,00,000/- was deposited later on. The amounts were correctly Consumer Complaint No.58 of 2013 9 charged for her treatment and there was no such excess amount charged. False allegations have been made by the complainant in her complaint. In fact the complainant has tried to mix up the ad hoc and the final bills. At the time of the final auditing at the time of discharge, the second rent was reduced from isolation to ICU charges and room rent was correctly charged. The complaint is a flagrant abuse of process of law and has been filed in order to harass, malign and blackmail them. They prayed for the dismissal thereof with costs; being false, frivolous and devoid of merit.
4. Opposite party No.3 in his written reply reiterated the averments as made by opposite parties nos.2 and 4 in their written reply. In fact that reply is the reproduction of all the facts as pleaded by opposite parties Nos.2 and 4 in their reply.
5. We have carefully gone through the averments of the parties, evidence produced by them in support of their respective averments and have heard the learned counsel on their behalf.
6. It was submitted by the learned counsel for the complainant that the negligence on the part of opposite party No.3 stands established from the following facts, which were duly proved by cogent and convincing evidence:-
i) before conducting the colonoscopy the consent of the complainant was not obtained;
ii) the procedure of colonoscopy and the risk involved therein was never explained to the complainant;
iii) opposite party No.3 did not stop the colonoscopy even after the complainant complained of pain; and Consumer Complaint No.58 of 2013 10
iv) the sigmoid perforation was the result of the negligence on the part of opposite party No.3 in performing the colonoscopy.
Opposite party No.3 was duty bound to obtain the consent of the complainant before subjecting her to colonoscopy, which involved the exercise of insertion of colonoscope through anus and there was every chance of some complication to develop. As the complainant was to be subjected to pain, so the procedure was required to be explained to her. It is very much clear from the affidavit of the complainant that during the performance of that test she felt a lot of pain and she immediately asked opposite party No.3 to stop the colonoscopy but he did not stop and as a result of the exertion of the pressure perforation was caused. Had the colonoscopy been stopped then and there, she would not have suffered that perforation; which ultimately had to be sealed by conducting surgery and as a result thereof she was subjected to financial loss in the form of the Hospital bills. The complainant herself has not produced any such expert evidence but the Commission itself referred the matter to the PGI, Chandigarh and it is very much clear from the report of the medical experts of the PGI that there was negligence on the part of opposite party No.3 in conducting that colonoscopy. He further submitted that as a result of that negligence on the part of opposite party No.3, the complainant was not only made to suffer financial loss by way of the deposit of the Hospital bills but her life has also been shortened and she has become dependent on others, as she cannot follow the daily routine. The servant has been employed Consumer Complaint No.58 of 2013 11 in order to assist her. Her dependency can well be ascertained as a housewife and by applying the suitable multiplier she is entitled to the compensation, as claimed in the complaint; which also includes the compensation for the harassment and mental agony suffered by her on account of medical negligence of opposite party No.3.
7. On the other hand, it was submitted by the learned counsel for the opposite parties that no such medical negligence can be attributed to opposite party No.3. It is not the case of the complainant that there was any negligence on the part of opposite party No.4, who performed the surgery and the perforation was caused during colonoscopy. From the evidence, it stands proved that the consent of the complainant was duly obtained before conducting the colonoscopy and the procedure was duly explained to her. It also stands proved that she did not suffer any pain during that test and that pain was suffered by her after the test was complete. It is very much clear from the medical literature available world over that there can be perforation during colonoscopy and that cannot be attributed to negligence on the part of the Doctor unless it is proved that he exerted more force than required, while conducting the test. It is very much clear from the report of the PGI, Chandigarh that the perforation was on account of the physical condition of the complainant herself and was not the result of any such medical negligence on the part of opposite party No.3. The complainant failed to produce any expert evidence for proving that medical negligence and in the absence of such evidence no such medical negligence can be Consumer Complaint No.58 of 2013 12 attributed to opposite party No.3. Immediately after the test, opposite party No.3 recorded the findings and the findings so recorded by him itself rule out the possibility of any such negligence. When there was no such medical negligence, no order can be passed awarding the compensation to the complainant, as prayed for in the complaint. In support of her arguments, she relied upon the following judgments:-
(i) (2009) 7 Supreme Court Cases 130 [C.P.
SREEKUMAR (DR.), MS (ORTHO) v. S.
RAMANUJAM];
(ii) (2010) 3 Supreme Court Cases 480 (KUSUM
SHARMA AND OTHERS v. BATRA HOSPITAL AND
MEDICAL RESEARCH CENTRE AND OTHERS);
(iii) (2009) 4 Supreme Court Cases 705 [INS. MALHOTRA (Ms.) v. Dr. A. KRIPLANI AND OTHERS];
(iv) IV (2006) CPJ 71 (NC) (BABURAO SATAPPA
IRRANNANAVAR v. KLE SOCIETY'S HOSPITAL &
RESEARCH CENTRE AND ANR.);
(v) 2013(1) CPR 137 (NC) (Shri Mehernosh Kersi
Khambatta v. Venkatrama Nursing Home and Ors.);
(vi) 2013 (1) CPR 240 (NC) (Kersi F. Dalal v. Dr. Janak K. Mehta & Ors.);
(vii) 2013 (3) CPR 334 (NC) (Chandrakant S. Kothari, Ruby Apartment, Mahavir v. Dean Sir Hurkirondas Norrotumdas & Anr.);
(viii) 2014 (5) Supreme 560 (Mrs. Kanta v. Tagore Heart Care & Research Centre Pvt. Ltd. & Anr.);
Consumer Complaint No.58 of 2013 13
(ix) THE WEEKJLY LAW REPORTER April 26, 1957 [QUEEN'S BENCH DIVISION] [BOLAM v. FRIERN HOSPITAL MANAGEMENT COMMITTEE); and
(x) (1954) 2 Weekly Law Reporter (COURT OF APPEAL) (ROE v. MINISTER OF HEALTH AND ANOTHER).
8. In view of the allegations made in the complaint it is necessary to understand as to what is colonoscopy and in what circumstances the same is to be performed. As defined in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (31ST EDITION), "Colonoscopy" is the examination by means of colonoscope. A colonoscope is an elongated flexible endoscope for visual examination of the entire colon; called coloscope. As per available literature and which has formed part of the record, since the introduction of colonoscopy into clinical medicine, flexible fiber-optic colonoscopy has had a great impact on diagnosis and management of diseases of the colon and rectum. This colonoscopy has the complications as have been laid down in various books by different authors. However, over the last three decades, advances in endoscope design, bowel preparation, and the array of instruments and techniques available have made colonoscopy one of the safest of invasive procedures. Complications and adverse effects still happen, of course, but their frequency is low. Complications can occur during both intubation or extubation of the colon. Usually, most traumatic damage is done on the way in and most therapeutic damage is done on the way out. Some complications, such as perforation (as is the case in the present complaint), can be done either way. The ideal Consumer Complaint No.58 of 2013 14 colonoscopic technique is gentle, unhurried, and efficient, using an economy of action and minimizing loops. Patients with disease colons are more likely to have a perforation and so the incidence of perforation in completely normal colons is tiny. Colonscopists must be aware of situations in which the risk of perforation is increased. As per the "Complications of Colonoscopy" by Dr. Owen Epstein, colonoscopy is a highly efficient imaging modality but by its nature it is invasive and thus carries with it an intrinsic potential for a range of adverse events ranging from quite mild right upto and including death. Every colonoscopy should, therefore, be performed by a fully trained operator or by a trainee with close support.
9. Opposite party No.3, who had done the colonoscopy, proved on record his affidavit Ex.OP-3/A. It is very much clear from his affidavit that he is an expert in the field. He is Director of Gastroenterology in the opposite party-Hospital. He deposed in the affidavit that he is very qualified Gastroenterologist having vast experience of doing endoscopic procedures. Till date he has done approximately 35000 procedures (endoscopy/colonoscopy) successfully. He made the complete Curriculum Vitae Ex.OP3/2 part of his affidavit. As per that document, he is MBBS, MD, DM, MRCP (UK), FRCPE. He had been Junior Resident in the PGI from 1984 to 1987 and then as a Senior Resident in the same Institute upto 1990. Then he had been Registrar at Royal Belfast Hospital, U.K. and thereafter he had been doing the job at different places and he was Gold Medalist in Final Professional at CMC, Ludhiana. There is no doubt from his qualification and experience Consumer Complaint No.58 of 2013 15 that he was well qualified and experienced to conduct the colonoscopy.
10. It is very much clear from the evidence produced by the complainant herself that the colonoscopy had become must for the diagnosis of her disease, as she had undergone endoscopy and other clinical and hospital tests and the cause of her abdomen pain was not diagnosed and she was not relieved of the same. She was suffering from the same since the year 2006.
11. It cannot be made out from the evidence produced by the complainant that she had not consented to undergo this colonoscopy. She deposed in her affidavit Ex.CA that opposite party No.3 suggested this test on 20.6.2012 and the other test (MRCP), which was got done on 21.6.2012. She herself gone for colonoscopy on 4.7.2012. She has nowhere stated in her affidavit that she never consented for this colonoscopy but has tried to depose that she was hesitant to undergo the same being an invasive test done with the help of colonoscope through anus and that opposite party No.3 had assured that no harm shall be done and it is on his assurance that she agreed to go for the test. That clearly proves that she consented for this colonoscopy.
12. Was opposite party No.3 bound to disclose the complications of the test to the complainant? In respect thereof, learned counsel for the opposite parties has placed reliance on Queen's Bench Division judgment rendered in Bolam's case (supra). In that case Bolam was suffering from mental illness of depressive type and was advised by the Doctor attached to the respondent-Hospital to undergo elctro-convulsive therapy. Prior to Consumer Complaint No.58 of 2013 16 the treatment, Bolam signed a form of consent to the treatment but was not warned of the risk of the fracture involved. Even after the treatment Bolam did not sustain any fracture but when the treatment was taken second time he sustained fractures. No relaxant drugs or manual control were used except that a male nurse stood on each side of the treatment couch throughout the treatment. About that treatment there were two bodies of opinion, one of which favoured the use of relaxant drugs or manual control as a general practice, and the other opinion was for the use of drug that was attended by mortality risks and confined the use of relaxant drugs only to cases where there are particular reasons for their use and Bolam case was not under that category. It was held by the Queen's Bench that the Doctors were not negligent and the following principle was laid down:-
"A Doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art."
It becomes clear from the reading of this judgment that for not warning of the risk involved in the procedure by the Doctor does not amount to negligence. This Bolam's test was accepted by the Hon'ble Supreme Court as providing the standard norms in cases of the medical negligence. This very judgment was discussed by the Hon'ble Supreme Court in V. Kishan Rao v. Nikhil Super Speciality Hospital & Another [2010(5) SCC 513]. It was laid down therein that the Bolam Test has not been uprooted, though it came under some criticism. In England that test is now Consumer Complaint No.58 of 2013 17 considered merely a rule of practice or of evidence and not a rule of law but that Test was accepted as correctly laying down the standards for judging the cases of medical negligence in Jacob Mathew v. State of Punjab (2005) 6 SCC 1. Thus, the non- explaining of the risk involved in the test by opposite party No.3 does not amount to medical negligence on his part. No such medical literature was brought to our notice nor any judgment was cited on the point that non-disclosure of such a fact amounts to medical negligence on the part of the Doctor.
13. A number of judgments mentioned above have been cited by the learned counsel for the opposite parties. However, except the judgment in Bolam's case (supra), no other judgment is relevant in the present case keeping in view the submissions raised by the complainant and which have been noted in para No.6.
14. In view of the literature on the "Complications involved in colonoscopy" it was necessary for opposite party No.3 to stop the procedure as soon as the complainant complained of pain. The question of fact arises, as to whether the complainant complained of such pain during that colonoscopy? In her affidavit Ex.CA she deposed that during the procedure of colonoscopy, opposite party No.3 did not take all the precautions duly required from a specialist and as a result thereof, there was rupture on the portion of the colon, which she could feel immediately in the form of severe pain, which was neglected by the Doctor but despite repeated requests by her did not discontinue the procedure. That fact was duly denied by opposite party No.3 in his affidavit Ex.OP3/A. The deposition made by that Doctor stands corroborated from the Consumer Complaint No.58 of 2013 18 report prepared by him and which was proved on the record by the complainant herself as Ex.C16 and the Discharge Summary Ex.C17. It is very much clear from the Discharge Summary that after the colonoscopy the complainant was conscious and well oriented to time, place and person. She never disclosed at that time that during colonoscopy she had pain and opposite party No.3 continued with the procedure in spite of the complaint made by her. It cannot be believed that a Doctor with such qualification and experience will continue with a procedure, which was causing pain to the patient.
15. No expert evidence was produced by the complainant in support of her contentions made in the complaint in order to assess the situation and to determine the medical negligence on the part of opposite party No.3. This Commission, vide order dated 7.6.2013 sought the expert opinion from the PGIMER, Chandigarh. The Director of that Institute was asked to send some expert Doctor in Gastroenterology to give his expert opinion. Dr. S.K. Sinha, Additional Professor, Department of Gastroenterology was deputed, who produced on record the expert opinion and the same was tendered in evidence by the complainant as Ex.C-21. Thus, she is relying upon this expert evidence.
16. For proper appreciation of the act, so attributed to opposite party No.3 by the complainant and which according to her amounts to medical negligence the said expert opinion is reproduced below:-
"Subject: Regarding expert opinion. Consumer Complaint No.58 of 2013 19 Sir, Reference your letter No.SCDRC/PB/13/8214 dated 19.06.2013 on the subject noted above and seeking expert opinion thereupon. As per the provided records, colonic perforation was detected on the same day on which colonoscopy was performed. Chronologically, the two events seem to be related. Colonic perforation is a rare but known complication of colonoscopy. As per the available medical literature, various risk factors have been identified for colonic perforation following colonoscopy; some are related to conditions from which patients are suffering while others are related to the equipment and operator.
Patient related risk factors for colonic
perforation during colonoscopy include
presence of colonic diverticula or colonic
diverticulitis(as per the provided records, the index patient has been reported to have this), deep ulcers in colon, adhesion of colonic loops (the index patient has been reported to have this), presence of necrotic or gangrenous segment in bowel etc. As to the factors related to equipment and excessive use of force by the operator or poor colonoscopy technique, it is not possible to make out from the records and Consumer Complaint No.58 of 2013 20 thus it is not possible to comment on these factors. But occurrence of colonic perforation during colonoscopy is not always solely due to use of excessive force by operator or poor technique of operator, there are multiple factors which determine such an event in a given clinical setting. Timely recognition of such complications is important and determines the final outcome.
Thanking you.
Yours sincerely
Sd/- 26.7.2013 Sd/- 26.7.2013
(Dr. S.K. Sinha) Prof. Kartar Singh
Additional Professor Head
Deptt. of Gastroenterology Deptt. of Gastroenterology PGIMER, Chandigarh PGIMER, Chandigarh."
This report makes it crystal clear that the colonic perforation is rare but known complication of colonoscopy. In the case of the complainant, the same was on account of her own physical condition. So far as the use of excessive force by opposite party No.3, during that procedure is concerned, there is no such evidence produced by the complainant on the basis of which it may be said that he used more or excessive force during that procedure nor the same can be made out from the said report. It is not even the case of the complainant so pleaded in the complaint. It becomes clear from this expert report that opposite party No.3 was not to be blamed for that colonic perforation.
17. The present case stands totally covered by the recent judgment given by the Hon'ble Supreme Court in Mrs. Kanta v. Consumer Complaint No.58 of 2013 21 Tagore Heart Care and Research Centre Pvt. Ltd. and another 2014(4) R.A.J. 490. In that case the Doctor had performed angiography. The complainant alleged that during the angiography procedure she felt severe pain in the abdomen and brought the said fact to the notice of the Doctor but he ignored the same and continued with the procedure. The opinion of Dr. Trehan was obtained in that case and he opined that aorta dissection had taken place during the angiography procedure done by the said Doctor. The complainant filed the complaint alleging medical negligence on the part of that Doctor while conducting angiography resulting into dissection of aorta. The question arose, as to whether the same was the result of any negligence or rash act committed by the Doctor while conducting the angiography? It was found that the complainant was found stable after third day of angiography and no emergency operation was done. It was held that it was probable that due to such associated causes the passage of the catheter through aortic space was not smooth. There was no material to infer that Doctor had taken any adventurous step. There was nothing on the record, which pointed out that the Doctor used any brutal force to push the catheter. The mere completion of the angiography does not rule out aorta dissection during the procedure.
18. In the present case also the colonic perforation is alleged to have been done during colonoscopy and there is no evidence on the record that opposite party No.3 used excessive or more force, as required for conducting the same. The condition of the complainant was such that perforation was the natural result of Consumer Complaint No.58 of 2013 22 that colonoscopy, which was being done for diagnosing the exact ailment. In all these circumstances it cannot be held that opposite party No.3 was guilty of medical negligence. There is no merit in the complaint and the same is hereby dismissed.
19. The arguments in this case were heard on 28.8.2015 and the order was reserved. Now, the order be communicated to the parties.
20. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER September 07, 2015 Bansal