(Anita Kapoor, Member)
1. The present complaint has been filed by complainant Dinesh Kumar under Section 12 of the Consumer Protection Act, 1986 against the opposite parties.
2. On 30.9.2014, the complainant visited the hospital i.e. OP No.1 for the severe abdominal pain and the hospital staff/receptionist on duty after fulfilling the required formalities/form asked the complainant to consult the OP No.2. OP No.2 examined the complainant and advised diagnostic tests. On 30.9.2014, the complainant was admitted for surgery for gall stone as per the advice of OP No.2 and Laproscopic Cholecystectomy was done on 30.9.2014. Even after the surgery and discharged medication and taking medicine as prescribed in the discharge summary the health of the complainant did not improve and condition remained bad. The complainant again met the OP No.2 and explained about unrelieved pain, but this time OP No.2 flatly refused to entertain and asked the complainant to pay Rs. 30,000/- for further diagnosing. The complainant left with no option and as such complainant contacted the Jindal Diagnostic Centre, Kalka and as per the ultrasound abdomen and the finding of the Jindal Diagnostic Centre clearly showed Gall Bladder is partly distended and shows a calculus in its neck 7.9 mm in size. Now, the complainant is under the treatment of doctors at PGI for said disease. The report of the ultrasound of PGI clearly shows residual gall bladder stone 8.7 mm size. It is clearly established by the PGI diagnose that there is a stone in the gall bladder of the complainant and it was never removed by the Ops and huge amount received by the Ops from the complainant. It amounts to deficiency in service on the part of Ops and as such, the present complaint was moved by the complainant. Hence, this complaint.
3. Upon notice, OPs appeared and contested the complaint by filing written statement taking preliminary objections that: complainant has not come to this Forum with clean hands and has suppressed the material facts and information to this Forum; present complaint is not maintainable; no cause of action has arisen to the complainant against the replying OP. In his written version, OP No.1 stated that OP No.2 is a qualified, experienced and competent surgeon of the OP no.1. So, the complaint against the Ops No.1 and 2 are uncalled and unfounded. The OP No.1 is duly insured with M/s New India Assurance Co.Ltd., 301, R.G.City Centre LSC, Block-B, Lawrence Road, New Delhi under Professional Insurance (Medical Establishment) policy vide it Policy No.93000036130200000016 effective from 9.3.2014 to 8.3.2015. There is no privities of contract between the OP No.1 and the complainant, so the OP No.1 is not liable to pay any claim or damages to the complainant. The OP No.1 has experienced doctors and Para medical staff of its own, services of which are available round the clock. The complainant is a known case of severe abdominal pain and came to the Ops with this symptoms, it itself indicate that the problem of the complainant was severe and he was not in proper state of health. He needed surgical intervention for the treatment of his disease and the same was advised on OPD basis on 25.9.2014. The complainant was admitted in the hospital of OP No.1 on 30.9.2014 for surgery. The patient (complainant) was operated on 30.9.2014 and Laparoscopic Cholecystectomy was done which is a standard procedure as per the medical literature. The patient (complainant) had sever abdominal disease and surgery was difficult. The biopsy report reveals already cut open Gall bladder measuring 6X2X.3 cm external surface is unremarkable. The patient was lost to follow up as per the hospital record after 11.10.2014 and he did not come to the hospital for further follow up so the question of any complaint does not arise. The allegation of residual gall stones is a known complication of the surgery for gall stone. The OP No.1 and Dr. Harsh Garg treated the complainant with best of his ability and professional capability, in view of the treatment given to the complainant as per the medical protocol and the best possible line of treatment was given. Hence, the present complaint be dismissed in the interest of justice and with heavy cost.
4. OP NO.2 has stated that the patient (complainant) was operated on 30.9.2014 andLaparoscopic Cholecystectomy was done which standard procedure as per the medical literature. The complainant had visited the OP No.2 in OPD on 11.10.2014 and had no complaint of any kind as is very clear from the OPD card, his sutures were removed on this date and the complainant was perfectly alright. The complainant had suffered because of the severity of the disease and not because of the treatment given to him by OP No.2. OP NO.2 i.e. Dr. Harish Garg treated the complainant with best of his ability and professional capability. The attending doctors did their best and gave best medical care and used caution. The OP No.2 had rendered medical services to the complainant as a qualified and prudent doctor no medical negligence or deficiency can be inferred from the submissions. So, the complaint shall be dismissed with heavy cost.
5. The OP No.3 in his written version has stated that the complaint cannot be proceeded to summarily by this Forum and the same needs to be relegated to the civil court for proper adjudication. The complaint had been filed without any basis and substance against the OP no.3 and the complainant has falsely implicated the OP No.3 and requested for dismissal of the complaint.
6. The OP No.4 has adopted the written statement, filed by the OP No.1.
7. The counsel for the complainant placed on record affidavit as Ex.C-A along with documents Annexure C-1 to C-5 and thereafter closed the evidence. On the other hand, the Ops No.1 and 2 have tendered into evidence affidavits Annexures R1/A and R1/B alongwith documents Annexure R1/1 to R1/4 and closed the evidence. OP NO.3 had made a separate statement and stated that his written statement might be read as his evidence and the documents filed by the OP No.2 be read as his evidence and closed the evidence. The OP No.4 tendered into evidence documents as Annexures R4/1 and have closed the evidence.
8. We have heard learned counsel for the parties and have gone through the record carefully.
9. It would be apparent from a perusal of the complaint and the documentation annexed therewith that the grievance of the complainant is that there was deficiency in service on the part of the OPs in view of the fact that inspite of his having been operated upon for removal of gall bladder stone, residue was left which kept on causing him pain and which (residue) was discovered by the Doctors at PGI whom the complainant turned to for relief, after the OPs could not provide any inspite of repeated contact. In support of the averment, reliance has been placed upon the PGI documentation i.e. the record pertaining to the discharge and follow up dated 06.02.2017.
10. The pure and simple plea on behalf of the OPs is that the operation having been performed with due diligence by a duly qualified operating surgeon, the mere fact of a residue having been found subsequently would not prove any negligence or deficiency on the part of the OPs including the surgeon who performed the operation. Reliance, in support of the averment, was placed upon the judgment rendered by the Honble Apex Court in 2009 (2) Supreme Court 40 (Martin F.D/Souza vs. Mohd. Ishfaq) and also a rulling by the Honble National Consumer Disputes Redressal Commission in Oxford Hospital and another vs. K.K. Mittal etc. (Revision Petition No.85 of 2016) decided on 11 July, 2016.th
11. Having given our due consideration to the core aspect evident from the rival contentions canvassed during the course of hearing, we find ourselves in complete agreement with the plea on behalf of the OPs. The reasons therefor are as under.
12. The plethora of law available on point of medical negligence would indicate that the mere fact of want of total recovery or any like factor would not, by itself, prove negligence or deficiency on the part of the concerned Doctor in the matter of treatment/operation of a patient. It is for the averring complainant to prove, on point of fact, that there indeed was negligence or deficiency in the matter of treatment/operation on the part of the medical personnel concerned. The rulings relied upon by the OPs further prove that there is nothing unusual or unnatural in a residue having been left because certain part of the residue could have been clinging to the walls of the gall bladder. Further, in this case, the operation had been performed by a specialist who was duly qualified and there is no proof of intentional negligence/deficiency on his part. The commentary on the relevant aspect would also bear it out. The commentary would indicate that the burden of proof is correspondingly grater on the person who alleges negligence against the Doctor. It is a known fact that even with a doctor with the best skills, things sometimes go wrong during medical treatment or in a surgery. A doctor is not to be help negligent simply because something went wrong. (Extraction from Article titled Medical negligence liability under the consumer protection act: A review of judicial perspective by S.V. Joga Rao Published Indian. J. UROL 2009).
13. The reliance placed by the complainant upon Mehar Chand vs. Dr. Parveen Garg (case No.CC/388/2010, decided by the District Consumer Dispute Redressal, Forum, Yamuna Nagar) is misconceived for want of applicability to the facts and circumstances of the present case. In that case, the determination predominantly turned around the validity of the consent given by the patient. Even otherwise, we are bound by the law laid down by the Honble Apex Court and the Honble National Commission.
14. In the light of the foregoing discussion, we have no reservation in holding that there is no force in the complaint. It shall stand rejected accordingly.
15. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. Announced 29.11.2017 JAGMOHAN SINGH ANITA KAPOOR DHARAM PAL MEMBER MEMBER PRESIDENT Note: Each and every page of this order has been duly signed by me. ANITA KAPOOR MEMBER