Consumer Complaint No: 360/2005

Date of presentation: 15.12.2005

Date of decision: 06.01.2010

@@@@@@@@@@@@@@@@Smt. Kamlesh Gupta W/O Shri S.K. Gupta,

R/O 18/3, Ganj Road, Shimla-1.

… Complainant.
Versus

1. Dr. S.K. Bhardwaj,

Mamorial Centre, Near Zonal Hospital, Solan,

Solan Road, Solan, H.P.

2. Dr. Anita Sood,

Referal Hospital Sundernagar,

District Mandi, H.P.

Presently Prop of Him Care Medical Centre near

LIC Office, The Mall, Solan, H.P.

3. Professor D.C. Marwaha,

C/O Hari-har Hospital,

Guthar, Tehsil and District Mandi, H.P.

4. State of Himachal Pradesh,

through Secretary Health,

Shimla-2, H.P.
…Opposite Parties

For the complainant: Ms. Anupama Sharma, Advocate, vice

Mr. Shashi Shirshoo, Advocate.

For the Opposite Party No. 1: Mr. Anoop Sharma, A.D.A.

For the Opposite Party No. 2: Mr. Virender Chauhan, Advocate.


O R D E R:

Dr. Karuna Machhan, Member:- This complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that, she on, 06.078.2002, had continuous vomiting and ache in her abdomen, hence, got treated herself from Zonal Hospital Solan, where the doctor advised her for Ultra Sound USG, which was got done, on, 09.08.2002, and the doctor opined that there was a positive feature of multiple stone. She further averred that she was got admitted in IGMC Shimla for operation of her gall bladder and she was hospitalized from 16.10.2002 to 21.10.2002 in Unit Charge of Dr. D.C. Marwaha, who conducted Chelecys tectomy who found the gall bladder on the left side. She further aver that when the operation was being performed the OP No.3, did not find the gall bladder on the right side. The complainant further proceeded to aver that their was culpable negligence on the part of the OPs, and the doctor who conducted the operation, inasmuch, as, they were not skilful, hence, was made to suffer cutting of abdomen and as such, is having lot of complication after operation. Hence, it is averred that, there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OPs, in its written version to the complaint, has raised various preliminary objections regarding maintainability of the complaint and status of the complainant as a consumer. They have contended that due care and caution was exercised by them while performing the operation of the complainant, hence, no negligence can be attributed on them. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. The complainant, is, aggrieved by the act of the OPs, in not taking due care and caution while conducting the operation, of the complainant. However, the OPs, have contended that due care and caution was exercised by them at the time when the operation was conducted, hence, leaving, no, scope open for gross negligence on their part.

6. The learned counsel for the complainant in canvassing before us that it, is, a case of gross negligence on the part of the doctor, who conducted the operation, inasmuch, as, despite the ultra sound pictures, not, revealing the position of the gall bladder in it, which, is, normally, located as well, as, positioned on the left side of the abdomen, of, which portion of the body pictures were taken, ought, to, have requisitioned, then, fresh ultra sound pictures of even, the, right side of the abdomen of the patient for locating, the, exact position of the gall bladder, and to have then proceeded, to, conduct the operation which exercise, if, had been undertaken by him, would have obviated incisions over the entire abdomen, which incisions, as, were done, hence, resulted in the patient-complainant, being, subjected, to, post operation complications and hers, also, having been afflicted with hernia, entirely on account, of, gross negligence of the doctor emanating from his failure to requisition pictures of the entire abdomen, for, which, she, claims compensation.

7. The above contention, as, canvassed before us, of the doctor who conducted, the, operation, having not taken due care and caution, is, anvilled upon the judgment of the Hon’ble Supreme Court, as reported in, 1(2009) CPJ 32 (SC) Supreme Court of India, in case Martin F. D’Souza versus Mohd. Ishfaq. However, in the judgment as relied upon by the learned counsel, for, the complainant, the Hon’ble Apex Court, has, spelt out, that, unless an expert committee to which the matter, is, referred, concludes, that the doctor is grossly negligent, courts of law ought not to in its absence, independently, hence, conclude, that, the doctor who conducted the operation, was, grossly negligent. In the instant matter, the, causal connection between the purported gross negligence of the concerned Doctor in, the manner aforesaid, and, its begetting post operation complications, as well, as hers developing hernia, has, remained, in, the realm of pleadings, as such, unsubstantiated. Only in the wake of the findings of the expert committee to the effect, that, the purported post operation complications developed on the body of the patient, on account of gross negligence of the concerned Doctor, could, then, alone, we could have clinched a finding that, hence, the Doctor was grossly negligent, in, the performance of the operation. As a natural corollary absence thereof deters us from recording such a finding. Since, the cannon, of, the, ruling of the Hon’ble Apex Court, makes, the, findings, of, the expert committee to be clinching the issue, of, gross negligence of the Doctor, as such, also interdicts, us, to dis-concur with the said findings, consequently, in the absence of the findings of the expert committee, imputing negligence on the part of the concerned Doctor, we, are constrained, to, discountenance, the, contention, of, the counsel of the complainant.

8. The result of the above discussion, is, that the complainant has miserably failed to prove any medical negligence on the part of the OPs, as well, as, deficiency in service, hence, we, have no hesitation in concluding that this complaint being merit-less, is, liable to be dismissed. Ordered accordingly. No order as to the costs.

9. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.