Complaint No. 108/21.2.2007
Date of order: 13.11.2009
Miss. Jasmine Rajput daughter of Sh. Gurvinder Singh son of Sh. Amarjit Singh, aged approximately 5 years, through Sh. Gurvinder Singh son of Sh. Amarjit Singh her real father and guardian ad-litem resident of Sethi Lodge, Lakkar Mandi, Phillaur, Distt. Jalandhar.
(Complainant)
Vs.

1. M/s Deep Hospital, 481 Model Town, Ludhiana, through its Proprietor Dr. Baldeep Singh M.D. Paediatrics.

2. Dr. Baldeep Singh, M.D. Paediatrics, Prop. Deep Hospital, 481, Model Town, Ludhiana.

3. Dr. Sanjeev Gupta, M.Ch. (paediatrics Surgery) Engaged in services by Prop. Deep Hospital, 481 Model Town Ludhiana.

4. Dr. Arpinder Singh, engaged in services by prop. Deep Hospital, 481 Model Town, Ludhiana.

5. The New India Assurance Company Limited, Divisional office-III (360300) 29 Atam Nagar, Dugri Road, Ludhiana, through its Manager.
(opposite parties)

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.
Quorum:

Sh. T.N. Vaidya, President.

Sh. Rajesh Kumar, Member.

Smt. Priti Malhotra, Member.



Present:

Sh. Thaker Singh Advocate for the complainant.

Sh. A.K. Jindal Advocate for OP No.1,2 & 4.

Sh. Dalip Garg Advocate for OP No.3.

Sh. Rajan Kumar Chand Advocate for OP No.5.

O R D E R

T.N. VAIDYA, PRESIDENT:

1. Complainant a miner girl through her next friend, has instituted this complaint under section 12 of the of the Consumer Protection Act, 1986, claiming compensation of Rs.20,00,000/- from the opposite parties due to medical negligence committed by them.

2. It is averred that complainant was suffering from typhoid fever and then had pain towards her left side near ureter system. She got herself diagnosed from doctors of Civil Hospital, Phillaur and also from CMC & Hospital, Ludhiana and got her treated from Phillaur, Ludhiana and Phagwara from various medical teams. Then consulted doctors/ opposite party no.2 & 3 of the hospital of opposite party no.1 and got report dated 19.8.2006. Thereafter was admitted in the hospital of opposite party no.1 for surgical operation. Such decision was taken in haste and in negligent manners, because the operation finalized was not the common or ordinary operation. They were required to take second opinion to avoid an complication in the surgical operation of the complainant. Because, they were to operate the complainant for PUJ (paediatrics ureter junction) and were required to install artificial opening for the direct discharge of the urine from the ureter Ure-thritic. But without getting second opinion, complainant was got admitted in the hospital on 28.8.2006 and operated on the same day and discharged on 6.9.2006. She had to bear heavy expenses for such treatment and despite surgical operation, complainant was not cured properly and the same problem remained with PUJ. Obstruction in urine still remained there, causing fever from time to time. This happened due to negligence of the OP doctors, causing her great hardship and sufferance.

3. Opposite parties no.1, 2 and 4 in joint reply controverted allegations qua deficiency in service on their part and that they were negligent in treating the complainant. It is also pleaded that the complainant has no case against them; compensation claimed is excessive, exaggerated and inflated; complaint instituted with purpose to harass the opposite parties. Complainant had taken treatment for the disease from various hospitals, doctors and institutions, before taking treatment from them. Complainant never engaged opposite parties no.2 & 3 in the hospital for medical services as alleged. But opposite party no.3 only required the complainant to get ultrasound of KUB left Hydronephrosis-partial PUJ Obstruction done. Hence, was asked to consult pediatrics Surgeon for further treatment and management. They never suggested admission of the complainant for surgical operation. Neither any negligent decision in haste was taken. There was no need to go for second expert opinion. They have controverted all allegations of the complainant by denying them. Complainant earlier had got treatment from various other doctors and hospitals, but without any improvement. Surgical operation of the complainant cured her properly. There was no negligence in operation, hence not entitled for any compensation.

4. Opposite party no.3 by way of separate reply has also taken objection qua maintainability of the complaint; jurisdiction of the Fora to entertain the same. He has also controverted and denied charge of the complainant regarding negligent operation or treatment. It is pleaded that the complainant was referred to him as a case of Recurrent Urinary Tract Infection with uretero-Pelvic Junction Obstruction without any Vesico-Ureyteric Reflux. For this, had undertook treatment from various doctors from Phillaur, Phagwara and Doraha, but the problem still persisted. Then she was investigated thoroughly. Ultra Sound was done on 17.8.2006 by Dr. Rajiv Garg which suggested of Mild Left Hydronephrosis with partial pelvico-Ureteric Junction block. To reconfirm obstruction and to rule our VUR, IVP with MCU was done by Dr. Ajay Aggarwal & Dr. Kavita Aggarwal on 19.8.2006, which was suggestive of left Grade 1 hydronehrosis with disproportionate ballooning of pelvis with abrupt narrowing of pelvico-ureteric junction with delay in passage of contrast into the left ureter. Thus investigation confirmed that Pelvi-Ureteric Junction Obstruction and Infection were cause of concern and there were back pressure changes in the left kidney. So, decision was taken for operation, in view of condition of the patient. Attendants of the patient were advised for operation and after 10 days was admitted for surgery. Complainant was operated for left Pelvi-Ureteric Junction Obstruction. Dismembered Anderson-Haynes Pyeloplasty was done, which was standard procedure in such cases. Operation was successful as post operation DTPA scan done after removal of the stent and nephrostomy showed no block at the pelviureteric junction. He claimed himself to be a qualified paediatrics surgeon having vast experience in the field of operations.

5. Opposite party no.5-Insurance company in their separate reply have also denied any negligence or deficiency in service on their part. They have taken plea that there is no lapse or negligence committed by doctors concerned and as such the complaint deserves dismissal.

6. Complainant in rejoinder to the reply of opposite parties no.3 & 5 reiterated her own allegations.

7. Complainant in evidence has filed an affidavit of her next friend Sh. Gurvinder Singh in support of case and failed to lead any other evidence inspite of several opportunities granted to her and as such her evidence was closed by the Fora vide order dated 1.9.2009. Opposite parties no.1,2 & 4 tendered evidence by way of affidavit and documents in support of their contentions. Opposite parties no.3 & 5 made statements that they do not want file any evidence and as such their evidence was closed.

8. In case of medical negligence utmost question for determination always is whether the doctor treating the patient was negligent in performing his professional duties. The test in fixing negligence is the standard of the ordinary skilled doctor exercising and professing to have that special skill. Doctor would only be liable where his conduct fell below that of standard of reasonable competent practitioner in his field. For such legal proposition, we rely upon Apex Court judgement reported as Martin F. D’Souza vs. Mohd. Ishfaq 2009 (2) Recent Apex Judgements, page 39. (SC).

9. Complainant admittedly was suffering from Urinary Tract infection and obstruction at Uretero-Pelvic Junction. This is an admitted case of the complainant that for such Urinary tract infection and obstruction had taken treatment from doctor Gurdeep Singh Ex-Medical Technologist, C.M.C & Hospital, Ludhiana to whom was referred by Dr. Sukhdev Maingi and also took treatment from time to time from doctors of Phillaur, Ludhiana and Phagwara. When the problem was not cured after such treatment, then consulted doctors of OP no.1 who also confirmed such obstruction and referred the patient to opposite party no.3. Ultimately, opposite party no.3 after going through medical reports of ultra sounds etc. advised surgery to remove PUJ obstruction.

10. It is in the back drop of these admitted aspects, now to be seen whether opposite party no.3 was negligent in conducting operation of the complainant and it proved failure resulting in persistence and continuance of the same obstruction or problem. Iron cuts Iron. Consequently, expert opinion is required to prove such allegations of the complainant that doctor was negligent in conducting such operation, due to which problem persisted.

11. We are sorry to say that there is no evidence worth the name on this score. Complainant has not adduced any evidence in support of his allegations that operating doctor was negligent and problem still persisted. Complainant failed to produce any evidence or to comply with orders of the court for production of evidence. Ultimately, after granting many adjournments for such purpose, evidence of the complainant was closed by order by the Fora. Complainant simply has placed on the record affidavit Ex.Cx of her next friend Sh. Gurvinder Singh that no doctor was willing to depose against OP doctors.

12. As a result it is manifest that complainant is not able to bring home the point that operating doctor acted negligently, due to which problem for which she was operated, still continued. Also there is nothing suggestive from the record that surgery for such problem, with which complainant suffered, was not advisable.

13. In the book dealing in ‘ANOMALIES AND SURGERY OF THE URETEROPELVIC JUNCTION IN CHILDREN’ by Mychael C. Carr, M.D., Ph.D, it is recorded that UPJ obstruction may also be seen with severe vesicoureteral reflux (VUR). Then mentioned that in such a situation the obstructive lesion needs to be corrected initially, even though the VUR contributes to the initial problem. At another state, ld. author has mentioned that VUR has been found in 40% effected children.

14. It was in the instant case that complainant was suffering from PUJ obstruction. For such was operated after proper scanning and investigation. There is nothing to say that decision of the operating doctor to conduct surgery was wrong, against established norms of practice and that surgery was conducted negligently. Also there is nothing suggestive that surgery could have been avoided and patient treated through some other mode. No proof is on the record that surgery proved failure or that doctor conducting surgery was negligent.

15. In view of these aspects, we feel that this complaint has no legs to stand with, as complainant failed to prove negligence on the part of operating doctor. Therefore, finding no merit, complaint stand dismissed. We leave the parties to bear their own costs. Copy of the order be made available to the parties free of costs. File be completed and consigned to record.