Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 37.
Instituted on : 22.01.2008.
Decided on : 24.12.2009.
Smt. Rekha wife of Sh. Ram Phal aged 32 years r/o Village Bhainswal Kalan Tehsil Gohana Distt. Sonepat.
………..Complainant.
Vs.
1. Dr. Vikash Siwach, Siwach Sanjeevani Hospital Main Gohana Road, Rohtak alternatively Dr. Vikash Siwach, Siwach Satwik Clinic 443/30, Dev Colony Opp. CR Polytechnic Delhi Road, Rohtak.
2. National Insurance Co. Ltd. through its D.M.Rohtak.
……….Opposite parties.
COMPLAITN U/S 12 OF CONCUMER PROTECTION ACT,1986.
BEFORE: SH. JOGINDER SINGH JAKHAR, PRESIDENT.
SMT. MEENA KUMARI, MEMBER.
SH. VIRENDRA KUMAR JAIN, MEMBER.
Present: Sh.R.K.Sharma, Advocate for the complainant.
Smt. Rishwant Kaur, Advocate for the opposite party no.1.
Sh.D.S.Chauhan, Advocate for opposite party no.2.
ORDER
JOGINDER SINGH JAKHAR, PRESIDENT:
According to the complainant, she was having ailment namely Gall Stone and she consulted the respondent doctor at his hospital. At the time of consultation, the opposite party no.1 assured and promised the complainant that he will conduct operation of complainant without any difficulty and the complainant will be cured from ailment by the passage of time. The complainant was got admitted in the hospital of the opposite party no.1 on 2.6.07 and she had gone under operation on the same day by the opposite party doctor but by the passage of time, the complainant felt that she has not been operated upon properly with due care. The framic bile discharge from drain continue, at initially the bile was about 150 ml to 200 ml. The complainant remained under treatment of opposite party from 2.6.07 to 12.6.07 and at the time of discharge of complainant, the condition of the complainant was bad to worst and was in most deteriorating condition. The complainant finding no alternative consulted another senior Surgeon Dr. R.P. Singh, consultant of Amarleela Hospital at New Delhi who opined that the present condition of the complainant was the result of sheer and gross negligence on the part of opposite party doctor and ultimately due to effective medication of Dr. R.P.Singh with the help of other specialists, the life of the complainant has been saved. The complainant was admitted after three days from the opposite party hospital in Amarleela Hospital, Janakpuri, New Delhi and since then having Fromk bile discharge from Drain alongwith fever, Anemia with hypothermia C s/o Bilidary peritonitis specticarmia. During the investigation MRCP accumulation of bile is Sub Hypetic Spell with narrowing of CBD ERCP- at Ganga Ram Hospita, stering could not be done as CBD could not be negotiated when with Guide wixe due to damage of liver bed. Due to sheer negligence on the part of opposite party doctor the complainant had gone as many as 15 to 20 operations upon her body and had to suffer economical loss of Rs.1200000/- on her treatment and she has still not been recovered and under treatment. Complainant requested the opposite party so many times to compensate her on this account but to no effect. The act of opposite party is illegal and amounts to deficiency in service. Hence this complaint with prayer to direct the opposite party to pay compensation of Rs.19.25 lacs to the complainant alongwith cost of litigation to the tune of Rs.5100/-.
After notice opposite parties appeared and filed their separate written reply. Opposite party no.1 in its reply has submitted that the complainant was suffering from multiple diseases including gallstones and epilepsy(Mirgi) for which she was under treatment at Ganga Ram Hospital, Delhi for a long time. It is denied that it was assured and promised that opposite party will conduct operation of the complainant without any problem and no complication will arise. It is denied that complainant was not operated upon properly and with due care. She had abnormal anatomy of biliary system area which became evident only during operation. She was made aware of the abnormality and was managed according to the standard protocol. Initially the bile was about 150 ml to 200 ml which after standard treatment started decreasing showing satisfactory improvement. This was also confirmed by the ultrasound and blood tests done in postoperative period after operation. The complainant was operated on 2.6.07 and at the time of discharge on 8.6.07 the complainant’s condition was normal and she was advised regular check ups and she came on 1006.07 and 12.06.07. It was observed that her bile discharge was decreasing, which was an excellent sign of improvement and response to the treatment she was being given. At the time of last follow up she was showing good improvement. The complainant voluntarily stopped regular follow up check-ups without informing the respondent despite knowing that her regular check-ups were essential for her full recovery. There is no negligence on the part of opposite party and opposite party carried out all treatments according to standard protocols. Neither there is any deficiency in service nor the opposite party is liable to compensate the complainant to the tune of Rs.1925000/-. All the other contents of the complaint were stated to be wrong and denied. Opposite party prayed for dismissal of the complaint with costs.
Opposite party no.2 in its reply has resubmitted the facts mentioned in the reply filed by opposite party no.1 and further submitted that the complainant does not come under the purview of the consumer as defined under the Consumer Protection Act hence the complaint is liable to be dismissed and not maintainable against the opposite party no.2 as the complainant is not the consumer of the answering opposite party.
Both the parties led evidence in support of their case.
Complainant in his evidence tendered affidavit Ex.P1, documents Ex.P2 to Ex.P139 and closed his evidence.
Ld. Counsel for the opposite party no.1 in his evidence tendered affidavit Ex.R1/1, documents Ex.R1/2 to Ex.R1/3 and closed his evidence.
Ld. Counsel for the opposite party no.2 in its evidence has tendered affidavit Ex.R2/1, document Ex.R2/2 and closed his evidence.
We have heard learned counsel for the parties and have gone through the evidence and other material aspect of the case very carefully.
Ld. Counsel for the complainant has contended that the allegation of the complainant is that due to negligence on the part of opposite party no.1/doctor in treating the complainant for the disease of Gall stone, her condition had gone bad to worst and she had to spent Rs.1200000/- on her treatment for which she has to be compensated to the tune of Rs.1925000/- Ld. Counsel for the complainant has placed reliance upon the authorities reported in II(2008) CPJ 93(NC) titled G.Balakrishna Pai Vs. S.N.M.M.G.H.& T.B.Clinic & Ors., as per which Hon’ble National Commission has held that: “Highly improper arrangement to provide medical services proved-Medical records not kept properly-Hospital administration ailed to take due care of patient, neglected at various stages-Deficiency in service and medical negligence proved- Compensation alongwith cost awarded” and 1(2009) CPJ 297 of Delhi High Court titled Sudha Garg Vs. Union of India & Ors.
Ld. Counsel for the opposite party no.1 has contended that all treatments were according to standard medical protocols. The complainant has not produced any medical evidence or medical literature to prove alleged medical negligence on the part of opposite party. Opposite party placed reliance upon the authorities reported in 2009(1) CLT 320 titled Jallella Venkata Subbamma Vs. D.M.Anjaneyulu & Anr., 2009(1) CLT 273 titled Abdul Rahim Vs, Kannaki Thiruvalluvan & Ors, and 2009(1)CLT 479 titled L.K.Indnani Vs. Indraprastha Apollo Hospital .
After going through the file and hearing the parties we have observed that as per the treatment record Ex.P13, the complainant was suffering from Gallstone disease and he was got admitted in the hospital of opposite party no.1 on 02.06.2007 and was operated for Lap Cholocystectomy and remained under the treatment of opposite party no.1 upto 12.06.2007. After that she had taken treatment from other hospitals as per treatment record Ex.P14 to Ex.P18. Complainant has also placed on file medicines bills Ex.P20 to Ex.P134 and legal notice Ex.P135.
After going through the file and hearing the parties we are of the considered view that the complainant after taking treatment from the opposite party no.1 had taken treatment from other hospitals and doctors and had spent a lot of money on her treatment. But to prove the negligence on the part of opposite party no.1, complainant has not placed on file even a single affidavit of an expert doctor. As in this case medical negligence is not proved hence the authorities cited above by ld. Counsel for the complainant are not applicable on the facts and circumstances of the case. In this regard, as per the authority reported in 2009(2)CLT 530 titled INS Malhotra Vs. A.Kriplani & Ors., Hon’ble Supreme Court of India has held that: “The appellant not leading evidence of any expert doctor to counter or rebut the statement of doctor made in written statement-Commission rightly came to the conclusion that the appellant has failed to establish in any manner that doctor was negligent or careless in performing laparoscopy upon the deceased”, as per 2009(3) CLT 526 titled Nitish Sethi & Ors Vs. Naresh Trehan & Ors., Hon’ble National Commission has held that: “The allegations made in the complaint against surgeon not substantiated by any evidence-Mere allegations, apprehension, conjectures and surmises cannot be relied upon unless they are corroborated with evidential value to conclude that there is deficiency in service or negligence on the part of the Ops”, as per 2006(1)CLT 384 titled K.Venkateshwarlu Vs. Managint Director Nagarjuna Hospital, Hon’ble National Commission has held that “Complainant has not lead any adequate evidence with supportive medical text and not examined any expert doctor to support his case-It cannot be expected that every physician or surgeon is gifted with extra ordinary skills or they can perform miracles-What is expected of a doctor is whether the procedure adopted by the doctor is acceptable to medical profession-Case of medical negligence not made out” and as per III(2006)CPJ 142(NC) titled Dr. Kunal Saha Vs. Dr.Sukumar Mukherjee & Ors., Hon’ble National Commission has held that: “Diagnose of disease varies from doctor to doctor-Doctor cannot be held liable for want of exact diagnosis”.
Keeping in view the above referred case laws, which are applicable on the facts and circumstances of the case we have come to the conclusion that complaint is not tenable. Accordingly we hereby dismiss the present complaint with no order as to costs.
Copy of this order be supplied to both the parties free of costs.
File be consigned to the record room.
Announced in open court:
24.12.2009.
………………………….
Joginder Singh Jakhar, President.
…………………………
Meena Kumari, Member.
…………………………
Virendra Kumar Jain, Member.
vs