National Consumer Disputes Redressal
Usha Devi vs E.S.I.C. Model Hospital & Anr. on 4 May, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 724 OF 2015 (Against the Order dated 03/08/2015 in Complaint No. 18/2010 of the State Commission Bihar) 1. USHA DEVI W/O. SHRI ARUN KUMAR SINGH, PRESIDENT OF BAKHSHEE MAIDAN, P.S.-CITY CHOWK, DISTRICT-PATNA, BIHAR ...........Appellant(s) Versus 1. E.S.I.C. MODEL HOSPITAL & ANR. THROUGH ITS DIRECTOR, PHULWARISHRIF, DISTRICT-PATNA, BIHAR, 2. DR. LOKAISH KUMAR (SURGEON) E.S.I.C MODEL HOSPITAL, PHULWARISHARIF, DISTRICT-PATNA, BIHAR ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE DR. S.M. KANTIKAR, MEMBER For the Appellant : Mr. Vijay Kumar, Advocate For the Respondent :
Dated : 04 May 2016 ORDER DR. S.M. KANTIKAR, MEMBER
1. The appellant-complainant, Smt. Usha Devi was a patient of OPs 1&2 i.e. ESIC Model Hospital, Patna (OP1) and Dr. Lokesh Kumar (Surgeon) (OP2) working at OP-1.
2. The learned counsel Mr. Vijay Kumar argued the matter at admission stage and submitted that the complainant was suffering from piles since 23.06.2010 and he was on medicines. On 23.09.2010, for the complaint of pain in abdomen, she got admitted in the OP-hospital. She was diagnosed as right hypochondrial swelling and advised few tests. On 29.09.2010 the doctors planned for aspiration, but it was postponed without assigning any reason. The OP did not carry out any pre-operative tests to diagnose the abdominal disease or stone. On 30.09.2010 the OP2 performed two operations on the patient, one for removal of gall bladder and another for removal of piles. Thereafter, on 08.10.2010, the patient was advised for ultrasonography of whole abdomen which was done after operation. Even the Mahavir Cancer Sansthan, Phulwarishrif, Patna reported no evidence of malignancy in the gall bladder. Therefore, the complainant alleged that the OP-2 removed gall bladder unnecessarily, whereas the patient was only suffering from piles.
3. In the meanwhile, on 05-10-2010, Usha Devi and her son Jitender Kumar lodged FIR in the local police station under Section 308/34 of IPC against the OPs. The counsel relied upon various judgments i.e. Kishore Lal Vs. Employees' State Insurance Corporation, I (2008) CPJ 13 (SC); Samira Kohli Vs. Dr. Prabha Manchanda & Anr., I (2008) CPJ 56 (SC); Malay Kumar Ganguly Vs. Sukumar Mukherjee (Dr.) & Ors., III (2009) CPJ 17 (SC); Poonam Verma Vs. Ashwin Patel & Ors., I(1996) CPJ 1 SC and M/s. Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia, through K. S. Ahluwalia & Anr., (1998) 1 BLJR 755.The complainant filed complaint before the Bihar State Consumer Disputes Redressal Commission, Patna (for short the State Commission) praying compensation of Rs.25,00,000/- from the OPs.
4. The State Commission dismissed the complaint. Being aggrieved the complainant preferred this first appeal.
5. We have perused the medical record and the discharge slip of OP1 hospital. It clearly shows that the patient was having history of bleeding per rectum, painful defecation with bleeding. So it was diagnosed as thrombotic prolapsed piles at 3, 7 and 11 O' clock powas suffering from sition. In addition patient Pyocele of Gall Bladder with Parietal Abscess. The patient was admitted on 25.09.2010, after, all routine investigations/examinations , patient was operated. Postoperatively, proper ointment, antibiotics and proper medicines were given.
6. It is pertinent to note that, the Medical Superintendent set up an inquiry committee of members consisting of specialist from Obstetrics & Gynaecology, Medicine and Administration department. The committee recorded the statement of Dr. Lokesh (OP2), Dr. Pankaj Kumar (Anesthetist), the OT nurse, Smt. Nand Kumari and the nurses in charge Smt. Sushila Sinha. It was concluded that, the both the operations were necessary for her healthy life. The committee further opined that, intial aspiration of Rt hypochondial lesion was done, it was painful, therefore the surgical team operated the patient for removal of gall bladder and the piles.
7. The operation of the complainant was posted for piles whereas she was operated for infected gall bladder. She has also suspected that the kidney of the patient may also be removed. However, the statement of the Surgical Specialist as well as the other attending doctors and staff clearly say that the patient was operated for infected gall bladder on provisional diagnosis before the operation was taken up in view syringing of painful lump at Right Hypochondrium along with operation for piles. It has been found that there was no ill intention of the surgeon in this case. Considering the medical record, we are of view that, OP-2 performed both the operations in one sitting as per medical ethics and norms under single anesthesia. It is supported by O.T nurse as well as the attending anesthesiologist. Therefore we do not accept the submission of complainant's counsel that, OP-2 performed two operations unnecessarily, only the operation of piles should have been performed.
8. After thoughtful consideration it is clear that the patient was suffering from two ailments, (i) gall bladder pathology and (ii) piles. The OP2 performed operations on the same day. The first operation was performed between 11.30 to 1.00 P.M. wherein the gall bladder was removed. Thereafter, hemorrhoidectomy (removal of piles) was done from 1.30 to 3.00 P.M. In Achutrao Haribhau Khodwa and others versus State of Maharashtra and others (1996) 2 SCC 634, the Hon'ble Supreme Court categorically stated that the doctor can choose the course of treatment. It observed as follows:
"The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."
9. In the instant case, it appears as a misconception of the patient and her relatives about two operations. It is pertinent to note that initially the complainant's grouse was that the OP2 removed kidney but it was a false averment. The doctor treated the patient with reasonable standard of care. We do not find any flaw in the act of OPs. In our considered view, that decision of OP-2 for removal of infected gall bladder was correct and in the interest of patient. The histopathological study reported it as chronic cholecystitis. Both the operations are totally separate entity; no injury resulted to the patient.
10. Therefore, we do not find any merit in this first appeal. Accordingly it is dismissed in limine. There shall be no order as to costs.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER