State Consumer Disputes Redressal Commission
Sh. Rajendra Prasad Sharma vs Dr. Manoj Kumar Gupta on 27 October, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRA DUN
FIRST APPEAL NO. 949 / 2003
Sh. Rajendra Prasad Sharma S/o Sh. Dolatram Sharma
R/o Gangoh, Tehsil Nakur
District Saharanpur
......Appellant / Complainant
Versus
Dr. Manoj Kumar Gupta
4, Cross Road, Dehradun
.....Respondent / Opposite Party
Sh. S.K. Gupta, Learned Counsel for the Appellant
Sh. M.K. Kohli, Learned Counsel for Respondent
Coram: Hon'ble Justice Irshad Hussain, President
C.C. Pant, Member
Dated: 27/10/2008
ORDER
(Per: C.C. Pant, Member):
This appeal has been filed by Sh. Rajendra Prasad Sharma, the complainant against the order dated 20.11.2003 passed by the District Forum, Dehradun, dismissing the consumer complaint No. 25 / 1997.
2. In nut-shell, the complainant's case is that he was operated upon by Dr. Manoj Kumar Gupta (opposite party) for the removal of the stone in kidney on 15.02.1994. Soon after the operation, the complainant had severe pain in abdomen. He was told by the opposite party that such a pain was the result of the operation and it would subside very soon. He visited the opposite party's clinic twice during a period of 15 days. The opposite party gave him some pain killers and injection, but these did not help him and the pain persisted. Feeling helpless, the complainant consulted other doctors, who advised him to go to New Delhi for proper treatment and surgery.
23. In New Delhi, the complainant contacted the doctors of All India Institute of Medical Sciences, Safdarjung Hospital and Holy Family Hospital. The doctors found that there was swelling in the right testicle and ureter region with right middle third ureter stone. The complainant was admitted in Holy Family Hospital, where, after giving treatment for subsidence of the swelling in testicles, he was operated upon for the removal of stone on 05.05.1994. A D.J. Stant inserted into the ureter, was removed on 13.06.1994. After the post operative treatment, the complainant could resume his duties after 15.04.1994. Thus, the complainant has alleged that due to the negligence of the opposite party, he could not perform his duty with the bank from 15.02.1994 to 15.04.1994. The complainant filed the consumer complaint for award of compensation / damages before the District Forum, which was dismissed by the District Forum vide the impugned order dated 20.11.2003. Aggrieved, the complainant has preferred this appeal.
4. We have heard the learned counsel for the parties and perused the material placed on record.
5. The complainant, who is an employee in Indian Overseas Bank, was posted at Gangoh Branch, District Saharanpur of the bank during the period to which this case pertain. The complainant has submitted that he met the opposite party - Dr. Manoj Kumar Gupta, a surgeon and urologist for the first time in Saharanpur during his visit to Mahavir Hospital and the opposite party suspected that the pain suffered by the complainant may be due to stone in kidney. The opposite party advised the complainant to come to his clinic M.K. Surgical Clinic and Stone Centre, Dehradun for detailed tests and 3 diagnosis. A fee of Rs. 100/- was paid to the opposite party for this consultation.
6. When the complainant visited the opposite party's clinic on 12.02.1994, he was advised "URS Lithotripsy" and was asked to come on 14.02.1994 (Paper No. 29B/21 of the original record). A clinical report of Satya X-ray and Ultrasound Clinic, Saharanpur also revealed that complainant had a "right ureteric calculus". A certificate dated 19.02.1994 issued by the opposite party (Paper No. 29B/11) clearly states that the complainant's was a case of "right lower ureteric calculus with hydro-nephrosis right kidney" and was thus operated upon by URS by the opposite party.
7. We have also gone through the case file of the complainant's treatment in Holy Family Hospital, New Delhi (Paper Nos. 56 to 119 of the record of the appeal). These documents also reveal that the complainant was the known case of ureteric calculus. The complainant has alleged that the opposite party made medical negligence in the above operation, due to which, he had to undergo another operation and further treatment at New Delhi, which caused him a lot of mental and physical agony coupled with the financial constraints. The complainant contended that the District Forum has failed in appreciating the facts and circumstances of the case and has wrongly dismissed his complaint. In support of his contention, the complainant placed reliance on a large number of the reported decision of Hon'ble Supreme Court and Hon'ble National Commission and various State Commissions. Some of the important judgments are as follows:
(i) K.N. Koteshwara Bhatta Vs. Kasturba Hospital; I (2007) CPJ 258 (NC), in which the Hon'ble National Commission 4 has observed that the hospital had done Angiography without any proper consent / explaining possible complications associated with their procedure and proper post-test care was also not taken. Therefore, the hospital was liable for medical negligence and deficiency in service.
(ii) M/s Spring Meadows Hospital and another Vs. Harjol Ahluwalia through K.S. Ahluwalia and another; AIR 1998 Supreme Court 1801. In the said decision, the Hon'ble Supreme Court held, "Very often in a claim for compensation arising out of medical negligence, a plea is taken that it is a case of bonafide mistake which under certain circumstances may be, excusable, but a mistake which would tantamount to negligence can not be pardoned".
(iii) Rashmi R. Fadnavis and another Vs. Mumbai Grahak Panchayat and others; (1998) NCJ (NC) 571, in which the Hon'ble National Commission has held that medical negligence and deficiency in service was proved because the doctor did not take normal care and diligence of providing mechanically operated respirator and adequate long needle for inter-cardiac injection.
(iv) P.P. Ismail Vs. Mrs. K.K. Radha; (1998) NCJ (NC) 328, in which the Hon'ble National Commission has held that the opposite party was negligent in the treatment of the complainant as it was found that foreign substance was left inside the leg, which was operated upon.5
(v) Prasanth S. Dhananka Vs. Nizam's Institute of Medical Sciences and others; I (1999) CPJ 43 (NC), in which the Hon'ble National Commission has held the opposite parties liable to pay compensation for medical negligence and serious lapse, such as pre-operative tests were not carried out.
8. In his defence, the opposite party urged that no documentary evidence in respect of medical negligence was submitted before the District Forum, but in appeal, the complainant has filed some documents of Holy Family Hospital, New Delhi. The opposite party has further stated that he had not operated the kidney of the complainant, but had opened the urinary track, which was blocked on account of stones. In his defence, the opposite party also submitted that the complainant has not filed any evidence to show that there were three stones in his kidney before the operation. There is no proof of medical negligence on his part, as there is no documentary evidence to show that the complainant's ureter was punctured during the operation on 15.02.1994 and as a result of this, the kidneys had stopped working. The only documentary evidence filed by the complainant to substantiate the allegation of medical negligence is Paper No. 107, which is a certificate dated 18.12.2003 issued by Dr. G.S. Kochhar of Holy Family Hospital, New Delhi. In the said certificate, the purpose of operation has been stated as "Cystoscopy and right Boari flap reconstruction with stone removal". The opposite party's argument is that the certificate has only stated the purpose of operation. On the contrary, Paper No. 108, which is in Dr. Kochhar's own handwriting, speak of "Cystoscopy and right Boari flap reconstruction" only and he has nowhere mentioned that the stone was also removed. The opposite party has further submitted that Paper No. 29B/32, another certificate dated 18.05.1994 issued by Dr. G.S. 6 Kochhar also confirm that no stone was removed by Dr. Kochhar. In his defence, the opposite party then submitted that Dr. G.S. Kochhar has nowhere mentioned in his certificates that there was any negligence on the part of the opposite party, rather he has supported the opposite party by saying that stricture is a known complication of endoscopic procedure (Paper No. 58B/2), vide certificate dated 10.11.2003 issued by him. The opposite party has also reproduced the following para from Campbell's Urology Eighth Edition Volume 4 Page 3318, in support of his contentions:
"Although advancements in endoscopic technology have revolutionized the diagnosis and treatment of ureteral calculi, ureteral obstruction, strictures and urothelial tumors, iatrogenic injury can occur with endoscopic techniques. Potential problems include ureteral perforation, ureteral stricture, ureteral false passage, ruptured balloon dilator, ureteral avulsion, bleeding and sepsis. After ureteroscopy, complications have been reported in 2% to 20% of procedures (Heney et al, 1989; Low et al, 1993."
9. According to the opposite party, the required treatment for the above complication is also given in the same book at the same page, which is as under:
"If the stenosed segment is short, balloon dilation or endoscopic incision may be used with close follow-up (Smith, 1988). If the segment is long or is associated with significant periureteral fibrosis, open surgical repair with primary ureteroureterostomy, psoas hitch, or Boari flap should be considered, depending on the location of the stricture."7
10. Photocopies of the extracts from the above book have also been filed by the opposite party.
11. With these submissions, the opposite party claimed that he had exercised his professional skill with reasonable competence and, therefore, he can not be held liable for medical negligence. He has also cited the following case laws in his support:
(i) K.S. Bhatia Vs. Jeevan Hospital and others; IV (2003) CPJ 9 (NC), in which the Hon'ble National Commission has held that as per the settled law on the subject, complainant has to allege which action of the opposite party was not as per the accepted medical practices. What was done, which should not have been done. This has to be supported by expert evidence of medical literature on the subject.
(ii) K. Venkateshwarlu Vs. Managing Director, Nagarjuna Hospital; I (2006) CPJ 47 (NC). In the said case, the Hon'ble National Commission has observed that a perusal of the clinical notes indicate that sincere efforts were made by the hospital authorities and the doctors concerned to perform the procedure. The complainant though suffered a serious set back in life as ill-luck would have it, but at the same time, we can not throw the blame on the doctor concerned in absence of cogent and reliable evidence supporting the contention of the complainant.
(iii) M.A. Ganesh Rao Vs. Dr. T.M.A. Pai Rotary Hospital and others; I (2007) CPJ 338 (NC), in which the Hon'ble National Commission has held that the doctors and the hospital can not be held liable for negligence in absence of specific negligence at any stage.8
(iv) Tara Chand Jain Vs. Sir Ganga Ram Hospital and another;
2006 (1) CPC 394 (SC), in which the Hon'ble Apex Court has held that medical negligence is not proved in absence of any evidence that the post-operative ailments were on account of medical negligence.
(v) Dr. Devendra Madan and others Vs. Shakuntala Devi; I (2003) CPJ 57 (NC), in which the Hon'ble National Commission has observed that in order to prove medical negligence, the complainant has to prove (1) that there was a breach of duty on the part of the doctor; and (2) that the breach of duty was the real cause of the damage complained of and such damage was reasonably foreseeable.
(vi) Jacob Mathew Vs. State of Punjab and another; AIR 2005 Supreme Court 3180, in which the Hon'ble Apex Court has observed that a lawyer does not tell his client that he shall win the case in all circumstances and a physician does not assure his patient of full recovery in every case. A surgeon can not and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for person operated upon.
12. We have considered the submissions made by the parties. Paper No. 29B/35 is a clinical report dated 11.02.1994, which clearly states that the complainant had a "right ureteric calculus". The opposite party in his prescription has also given the finding that the complainant had ureteric calculus and had advised URS lithotripsy and 14.02.1994 was fixed for lithotripsy. Paper No. 29B/13 is the discharge slip dated 19.02.1994, which also reveals that URS was performed for right lower ureteric calculus with hydronephrosis right 9 kidney. In his affidavit dated 12.10.1998 (Paper Nos. 41A/1 to 41A/8), the opposite party has stated that there was no stone in complainant's kidney and he had removed the stricture in ureter. This statement of the opposite party can not be relied upon because the clinical test and the discharge slip clearly indicate that the complainant was a case of ureteric calculus. Also, Dr. Kochhar of Holy Family Hospital has very clearly stated in his letter dated 18.12.2003 (Paper No. 107) that the purpose of operation was "cystoscopy and right Boari flap reconstruction with stone removal". This shows that the operation performed by the opposite party was not successful, but he had kept the complainant in dark. Instead of proceeding for further treatment, he prescribed some pain killers and antibiotics. Considering all these aspects of the case and evidence produced by the complainant, we find that the conduct of the opposite party was against the ethics of medical profession. The case laws cited on behalf of the opposite party do not help him. The extracts from Campbell's book, though submitted by the opposite party in his defence, help the complainant to prove that the opposite party had committed medical negligence and deficiency in service.
13. If we take the complainant's case amongst the cases in 2% to 20% range, as stated in Campbell's book, it is evident that Boari flap reconstruction was the remedy and the opposite party knew it very well. So instead of giving proper treatment and going for further clinical tests, he prescribed some pain killers and antibiotics. From the perusal of the copies of the Degrees and Certificates (Paper Nos. 42A/1 to 42A/12), opposite party appears to be a specialist in surgery and urology and he also claims to possess required skill in this field of medical science. In the face of the facts and circumstances of the case as stated above, we are of the opinion that the opposite party did not exercise the professional skill he possessed and, therefore, medical negligence on his part is proved beyond doubt. Due to this 10 negligence, the complainant had to go to New Delhi for further treatment and suffered a lot of mental and physical agony and financial burden and the opposite party is, thus, liable to compensate the complainant.
14. However, we fail to understand as to how the complainant has quantified the compensation claimed at Rs. 5.00 lacs. The copies of the bills / vouchers / receipts submitted by him do not support his claim for the said amount. The complainant is an employee of a nationalized bank and is entitled to reimbursement of the medical expenses incurred on his own treatment or on the treatment of any member of his family, who are dependent on him. Therefore, we have a reason to believe that he must have got reimbursement of some part of the medical expenses admissible under the bank's rules. Considering the facts of the case, we are of the opinion that a sum of Rs. 75,000/- would be proper and just compensation for medical expenses incurred and also for mental and physical agony suffered by the complainant due to the opposite party's negligence and deficiency in service.
15. For the reasons aforesaid, this appeal is allowed and the impugned order dated 20.11.2003 is set aside. The consumer complaint is partly allowed and the opposite party - Dr. Manoj Kumar Gupta is directed to pay a sum of Rs. 75,000/- to the complainant together with simple interest @6% p.a. from the date of filing of the complaint before the District Forum, Dehradun till payment and Rs. 5,000/- as cost.
(C.C. PANT) (JUSTICE IRSHAD HUSSAIN) Kawal