Thread: RG Stone Urology Centre

Appeal no. FA-253/06
(Appeal against the order dated 20.10.2005 passed by District Forum-II, in complaint case no.1007/2001)
Sharda Devi,

Verma Nagar, Etah-Agra Road,

Etah (U.P.) …..Appellant/complainant.

Through

Sh. Nalini Tripathi and

Sh. Ajay Kumar, Advocates

VS

1. R.G. Stone,

Urological Research Institute,

F-7, East of Kailash,

New Delhi Respondent/O.P.-1

1. Dr. Anil Varshney,

Urological Research Institute,

F-7, East of Kailash,

New Delhi

Respondents/O.P.-2

Through

Sh. Jeevan Parkash, Advocate

CORAM



Justice Barkat Ali Zaidi, President.

M.L. Sahni, Member

1. Whether reporters of local newspaper be allowed to see the

judgment?



2. To be referred to the reporter or not?

M.L. SAHNI, MEMBER



1. This appeal directed against the order dated 20.10.2005 has been filed by the complainant Smt. Sharda Devi (hereinafter referred to as the Appellant) whereby her complaint case no. 1007/2001 had been dismissed by the District Consumer Forum-II, New Delhi.

2. The facts giving rise to this appeal are that the Appellant filed a complaint against RG Stone (OP-1) and Dr. Anil Varshney (OP-2) (hereinafter referred to as Respondent no. 1 & 2 respectively) alleging that the allured by the assurances and promises made by the respondents, she agreed to undergo ESWL treatment for removal of stone from her kidney.

3. Her case was that she was suffering from urological problems and she approached the respondents on 2.4.99 for consultation. The respondents expertise in the process of ESWL treatment, according to them, was painless and involved only 4-5 sittings for removal of stone from the kidney. On motivation by the respondents, the appellant agreed to undergo ESWL treatment at respondents institute for removal of stone from her kidney. The treatment cost/package was Rs. 25,000/- plus charges for tests etc. The appellant paid Rs. 23,000/- as advance and she was admitted in the institute on 5.4.99. On the same day, the procedure of ESWL was carried out. However, the result of this sitting was a fiasco and the respondents told the appellant that the stone was hard and the procedure could not be effectively carried out. As a result of incomplete procedure and due to cracking of the stone, the appellant had to undergo lot of pain. She also developed infection and fever. Further sittings were deferred by the respondents for infection to cure. According to the appellant, this happened due to negligence on the part of the respondents. She took 10-12 sittings at LNJP hospital but the cracked pieces of stone could not be removed. She alleged that according to medical experts opinion best option in her case was an open surgery. However, this option was then ruled-out, because the cracked stone pieces blocked the ureter of the appellant. As per the Appellant , she is still not cured of her ailment. She prayed for directions to the respondent to pay to her a sum of Rs. 3,24,840/- as compensation for their negligence and deficient services, as per the following details :-
1. Amount deposited with the respondents Rs. 23,000/-
2. Amount spent on medical check-up Rs. 20,000/-
3. Amount spent on purchase of medicines Rs. 30,000/-

4. Amount spent on taking an accommodation

on rent in Delhi, because she had come from

East U.P. Rs. 54,000/-



5. Amount spent for hiring the services

of an attendant Rs. 27,000/-



6. Amount spent on transport in going

to hospital Rs. 10,000/-



7. Amount spent on the treatment of the

husband of the appellant Rs. 30,000/-



8. Interest @ 18% on the said amount Rs. 69,840/-



9. Compensation for harassment & mental

torture Rs. 50,000/-



10. Legal expenses Rs. 11,000/-

-----------------

Total Rs. 3,24,840/-
4. According to the respondents, their’s is one of the pioneer institute in Lithotripsy in South Region and respondent no. 2 is a qualified and trained doctor to carry out the procedure of ESWL. It is further stated that the appellant presented herself on 30.3.99 with complaint of stone in kidney for past several years. The size of the stone was found of Grade-II hydronephrosis with 15 mm Renal Pelvic Calculus . She was admitted on 5.4.99. She signed the consent letter agreeing that the treatment might prove unsuccessful. She was treated with the procedure of ESWL plus JJ stenting for fragmenting the stone in her kidney. The procedure was successful as it fragmented and disintegrated the stone which was confirmed by KUB on 19.4.99. However, the stone required further fragmentation and disintegration so that same could pass out through the urinary passage and for this appellant required second sitting of treatment. However, the appellant developed fever and Urinary-Tract Infection; and the second sitting had to be deferred. She was recommended certain antibiotics for a few days to treat the infection and fever but the appellant did not turn-up for further sittings after having been cured of infection and fever. According to the respondents no case of medical negligence is made out , nor there was any deficiency in service, on their part.

5. We have heard the Ld. Counsel for the parties at length. We have carefully examined the record and thoughtfully perused the impugned order.

6. To conclude its findings, the Ld. District Forum observed as follows :-

“ It appears to us that the complainant did not approach the OPs for further sitting after the cure of the infection. The OPD-cum-Discharge-Card issued by the Ops shows that the complainant last visited the Ops on 26.4.99 and she was prescribed further treatment for infection and was asked to report empty stomach after her Hb was more than 10.0 gms. Thereafter, admittedly, the complainant did not approach the Ops and rather went to LNJP hospital on 6.5.99 for further treatment and the LNJP hospital also advised ESWL and upto 21.9.99 she took 7 sittings of lithotripsy and according to the complainant she is still not well. The Ops delivered interrogatories to the complainant for cross-examination on the affidavit filed by her. In answer to question No. ,1 the complainant has stated that the Ops refused to provide treatment after the first sitting, though she was suffering from excessive pain. This reply of the complainant is against the record. The OPD card of the OP shows that she received treatment from the Ops for the infection upto 26.4.99. In answer to question No 7. it has been stated that she visited the Ops for 5-6 times and they deferred further treatment and she was compelled to approach other doctors. This is again wrong. The OPD card shows that the further sitting were deferred by the Ops because the complainant had not completely recovered from the infection”.

7. From the OPD-cum-Discharge Card, it is found that the Appellant aged 73 years approached the Respondents on 30.3.99 and she was admitted for surgery on 5.4.99 when the procedure was performed. She was discharged prescribing certain medicines and advised to come for review after one week. She again visited on 10.4.99 and was advised to come back for review on 17.4.99 with Urine Culture Report. She then visited the Respondents on 26.4.99 and was prescribed further tests and some medicines to control the infection. Again she was examined on 30.4.99 by the respondents, who thereafter abandoned the treatment, because there are no directions to the appellant for further review of her persisting ailment.

It is only then the Appellant had to approach LNJP Hospital on 6.5.99 where she took treatment upto 21.9.99 and as held by the Ld. District Forum she was still unwell.

8. In the above stated circumstances, the Appellant landed herself in more trouble than cure by the procedure carried out by the respondents. She, was left with no alternative/option but to approach some other hospital for relief. Persistence of infection & fever caused due to ESWL, without any relief for almost a month, sufficiently proves inadequate and imperfect treatment of the ailment,Appellant had to suffer. By no stretch of reasoning, prescribing treatment to control infection ineffectively wef 5.9.99 to 30.4.99 can absolve the respondents. They were responsible for aggravating her agony of which she expected relief for which she paid a sum of Rs. 23,000/- in advance, to the Respondents.

9. No doubt, for want of expert medical opinion, Appellant could not establish medical negligence , but in view of facts and circumstances as discussed above, deficiency in service is writ large in this case.

10. It is Respondent’s own case that Appellant was 73 years of age, when she was recommended for treatment of stone in her kidney with history of several years. The stone was of Grade-II hydronephrosis of 15 mm in size. She was also known case of Bronchial Asthama for 35 years with history of allergy with pencilin group of medicine. At an advance age, with all these ailment was ESWL procedure advisable ? Our answer to this question is in the negative. The result is apparent. After the procedure, infection set-in and could not be cured, despite the appellant continued undergoing treatment as prescribed by the respondents for almost a month. She did not get relief and had to consult LNJP hospital with hope for relief.

11. The respondents charged package-fee in advance before starting the treatment. Day-in and day-out, we see advertisements in Newspapers and hoardings in the city alluring gullible public for painless treatment of stone at “RG Stone Clinic” (Respondent-1). The appellant had also been allured by such tall claims of the publicity by the respondent no.1, and submitted for ESWL expecting the procedure to be painless. Conversely she had to undergo lot of pain without any relief and cure of her ailment for which she approached the Respondent No. 1- clinic.

12. We find the impugned order faulty on facts. Observations of the Ld. District Forum that the “OP never refused to give further sitting to the complainant who herself abandoned the treatment”, is contrary to the record. Respondents did not ask the Appellant to come again while prescribing Tab. Ditide ½. E.O.D. for 6 weeks , on 30.4.2009. This is abandonment of further treatment by the Respondents and not by the Appellant. Accordingly, we find that the impugned order is liable to be set aside.

13. Reverting to the merits of the case, we are of the considered view, that Respondent no. 1 has failed to provide satisfactory services to the Appellant. “Deficiency in service” is defined vide clause (g) r/w clause of Sub Section (1) of Section 2 of the Consumer Protection Act, 1986, means service of any description which is made available to potential mess , “ suffering from any fault, imperfection , shortcoming or inadequacy in the quality , nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.

14. There is no dispute that medical service is included in the definition of ‘service’ stated above. In the instant case, it is established from the facts discussed above that the respondent no. 1 failed to provide adequate , qualitative , faultless, perfect service, as had been undertaken to be performed by them in pursuance of their contract (package-deal) or otherwise treating the Appellant. We, therefore hold , Respondent no. 1 guilty of deficient services.

15. In the absence of expert medical opinion, no liability, however, can be fastened on Respondent no. 2 required to be produced by the Appellant.

16. Hon’ble Apex Court in case of “Martin F D’souza Vs Mohd. Ishfaq , 2009 CTJ 352(SC)(CP), has observed that. “Judges are not experts in medical science, rather they are laymen. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges have usually to rely on testimonies of other doctors which may not necessarily in all cases be objective since like in all professions and services doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence and (2) a balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals, doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and serve society no good. They inhibit the free exercise of judgment by a professional in a particular situation”.



17. As a result of above discussion, we set-aside the impugned order; allow the complaint filed by the appellant being Complaint Case No. 1007/2001 and pass the following order :

“Respondent no. 1 shall refund Rs. 20,000/-(Rupees Twenty thousand) to the Appellant charged for E.S.W.L. and pay a sum of Rs. 1,00,000/- (Rupees one lac only) as damages with Rs. 10,000/- (Ten thousand) as cost of litigation. If the entire awarded amount is not paid within one month of the receipt of this order, interest @ 9% p. a. shall be payable till realization”.

16. FDR / Bank guarantee, if any, furnished by the appellant be returned to the appellant forthwith after completion of due formalities.

18. A copy of this order as per statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and , thereafter , the file be consigned to Record Room.