State Consumer Disputes Redressal Commission
Chaman Lal Marwaha Son Of Shri Diwan ... vs 1. Dr. Raj Kumar Garg, Raj Hospital, Bye ... on 15 May, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.751 of 2004 Date of Institution: 17.03.2004 Date of Decision: 15.05.2012 Chaman Lal Marwaha son of Shri Diwan Chand Marwaha, Resident of House No.7, Circle 7, Gibindpura, Jagadhri, District Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar. Appellant (Complainant) Versus 1. Dr. Raj Kumar Garg, Raj Hospital, Bye Pass Road, Gobindpura, Yamuna Nagar. 2. Dr. Avinash Jain c/o Jain Clinic Laboratory, near Fountain Chowk, Yamuna Nagar. Respondents (Ops) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Mukhbir Singh, Advocate for appellant. Respondents exparte. O R D E R
Justice R.S. Madan, President:
Challenge in this appeal is to the order dated 28.01.2004 passed by District Consumer Forum, Yamuna Nagar at Jagadhri whereby complaint bearing No.493/1999 filed by the appellant (complainant) against the respondents-opposite parties alleging medical negligence and deficiency in service has been dismissed.
The case of the complainant before the District Consumer Forum was that he was a patient of Hernia and was admitted in the hospital of the opposite party No.1 on 12.04.1999 for operation, as per the advice given by the opposite party No.1 and was operated on the same day i.e. 12.04.1999. Complainant was discharged from the hospital on 19.04.1999 after cutting and removing the stitches. According to the complainant, after discharge from the hospital, there was still pain in the wounds of operation of the complainant and when the complainant approached the opposite party No.1, the opposite party No.1 assured that the operation had been successfully conducted and the pain was due to the wounds of operation and would be cured/subsided within a few days. But the pain remained continue because the pus had developed in the wounds due to some infection. It was alleged that on 17.8.1999, the opposite party No.1 on carefully diagnosis, a piece of thread of stitches which was left in the wound was removed. Complainant alleged that due to leaving of the aforesaid thread of stitches, pus and infection had developed in the wound. On 13.09.1999, the complainant visited Dr. D.D. Sawhney at Sawhndy Hospital on which Dr. Dawhney referred the complainant to Dr. Mohinder K. Mehta for ultrasound of lower abdomen. In the ultrasound, Dr. Mehta stated that some growth of Mass had been detected in the lower abdomen. Thereafter, the complainant visited Dr. Harsh Sharma of Vishal Hospital Jagadhri for further diagnosis. Dr. Harsh Sharma advised for several tests including FNAC test from Jain Clinical Laboratory of the opposite party No.2. Complainant further stated that the Opposite Party No.2 conducted the FNAC test blindly without proper instrument and without adopting proper procedure and gave the report dated 16.9.1999 that there was Mucoid adenocarcinoma large Intestine. Opposite Party No.2 and after examining the report dated 16.9.1999, Dr. Harsh advised for operation and Dr. Sawhney referred the complainant to P.G.I. Chandigarh.
On 17.09.1999, the complainant visited P.G.I. Chandigarh and got himself checked in the OPD where the concerned doctor advised for several tests and all the tests advised by the doctor of P.G.I., were conducted in the laboratory of the P.G.I. as well as in the private laboratory. In the test, it was revealed that although mass had grown, but it was not cancerous or carcinoma and possibly induced by foreign body and there was no evidence of malignancy i.e. cancer. The doctors at PGI told the complainant that the said mass had grown due to negligent operation conducted by the opposite party No.1 and they removed the said mass by conducting the operation upon the complainant. Thus the complainant alleged medical negligence and deficiency in service on the part of the respondents-opposite parties and sought compensation of Rs.85,000/- alongwith interest @ 2% per annum and to pay compensation of rupees two lacs besides litigation expenses.
Upon notice, the opposite parties appeared and contested the complaint by filing written statement by filing written statement. In the written statement filed by opposite party No.1 it was stated that the complainant got admitted in the in the hospital of the opposite party No.1 on 12.04.1999 and after the medical investigation, the complainant was found to be fit for surgery and accordingly after being administered spinal anesthesia, the complainant was operated upon the same day i.e. 12.94.1999. The surgery was conducted for hernia under all aseptic conditions and by undertaking the utmost care as per the medical ethics. The complainant was discharged in satisfactory condition, which was duly certified by the relatives of the complainant. There was no complaint by the patient during post operative period suggestive of any complication. On 17.8.1999, the complainant had visited the hospital of the opposite party No.1 for a small superficial granuloma about the size of 2-3 mm in the operation side for which the scrapping was done. The complainant was prescribed some medicines for three days only and was examined and was found to be cured of his problem. The present problem of the complainant was not due to the operation of Hernia conducted by the opposite party No.1 and the same was an independent disease of the operation of Hernial. The FNAC test is always based on probability and it is not a definite test. It is a blind technique and its overall accuracy in best centres of the world does not exceed 85%. This kind of a test can only give the probable cause and FNAC test had shown that there is a mucoid adenocardinoma large intestine. Thus, denying any kind of deficiency in service on their part, the opposite party No.1 prayed for dismissal of the complaint.
Opposite Party No.2 in his written statement stated that the complainant did not produce any other FNAC report contradicting the FNAC report given by him. The complainant compared FNAC report with Biopsy report but both the techniques are different. Pathologist can not seen structure of the mass. He has to make his judgment on the morphology of new cells aspirated in the fine needle which at times can be misleading. Some times even nonmalignant cells can look like malignant cells. Cytology Books are full of references of false positive and negative cases. Biopsy test is definitive and whole tissue is available to the pathologist in this test. Procedure is different and report is given after 4 to 7 days while FNAC report may be given within half to one hour. Had FNAC test been so confirmatory, need of Biopsy test would have abolished. But obviously this has not happened over the years. Accuracy of Cytology does not exceed 85% in best centres of the world. No harm has occurred because of the report of the opposite party No.2, rather, the complainant has been a gainer as his mass has been taken out within ten days of the report of the opposite party No.2, otherwise, such a big mass was causing lot of difficulty to the patient and any complication could have occurred. Because of early take up of the case by P.G.I. due to report of the opposite party No.2, the complainants physical and financial loss has lessened. Thus, the opposite party No.2 denied any kind of deficiency in service on his part and prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Consumer Forum finding no substance in the complaint dismissed the same.
Aggrieved against the order of the District Consumer Forum, the complainant has come up in appeal.
We have heard learned counsel for the appellant-complainant and perused the case file. Respondents are already exparte.
The grievance of the complainant is that the opposite party No.1 had conducted the operation of the complainant negligently by leaving thread stitches inside the operated part and also that the opposite party No.2 had conducted the FNAC test blindly without proper instrument and without adopting proper procedure and gave the report dated 16.9.1999 with the observation that there was Mucoid adenocarcinoma large Intestin and for that reason Dr. Harsh after examining the report had advised the complainant for operation and Dr. Sawhney referred the complainant to P.G.I. Chandigarh.
By now it is well settled law that to prove the negligence of a doctor, the claimant has to produce cogent and convincing evidence by way of expert evidence. Though, the complainant has tendered certificate issued by Dr. Joshi alongwith the report, but the same was not proved. In other words, Dr. Joshi was not examined and thus the opposite parties were deprived of the chance to examine Dr. Joshi. It has also come on the record that the test of histopathology is altogether different with the report of FNAC. It is also not disputed that the complainant was operated for Hernia by the opposite party No.1. As per report of P.G.I., it is evident that there was mass growth in intestine which has no concern with the operation of Hernia which was conducted by the opposite party No.1. As per the allegations of the complainant, the doctor of P.G.I. had gold that the mass had grown due to the negligent in conducting operation by the opposite party No.1 but the complainant has not examined any expert witness in this regard from P.G.I. Thus, the plea taken by the complainant in this regard has not been substantiated on the record. The documents produced by the parties has revealed that the problem/disease suffered by the complainant for which the complainant remained in P.G.I., is an independent problem and not related to the operation conducted by the opposite party No.1. The growth was confined to a portion of the intestine which was nothing to do with the Hernia operation. Dr. R. Nithawan has made it clear that the report of Dr. Avinash Jain (opposite party No.2) is identical with the report given by P.G.I. Chandigarh.
Having taken into consideration the evidence produced by the parties, it is established that the opposite party No.1 had conducted the operation of the complainant in accordance with the medial norms and ethics and the FNAC report was given by the opposite party on the basis of technique approved by medical jurisprudence. Nothing was found for breach of the duties of a doctor by the opposite parties. Nothing was brought on the record by the complainant to connect the treating doctors-opposite parties with the alleged medical negligence and deficiency in service. It is well settled law that if the patient does not recover from his/her illness even after being treated by doctors, the same cannot be termed as a case of medical negligence and deficiency in service on the part of the treating doctors. Reference is made to case law cited as Smt. Sajini, Major Versus Chaya Nursing Home & Ors, 2012(1) CPR 111 (NC), wherein Honble National Consumer Commission has held that medical complications always cannot lead to inference of medical negligence.
In view of our aforesaid discussions, we do not find any merit in this appeal. Hence, it is dismissed.
Announced: Justice R.S. Madan 15.05.2012 President B.M. Bedi Judicial Member