Kamla Rani w/o Vindhyachal, r/o Plot no.178, Street No.6, Grewal Colony, Tibba Road, near Grewal Atta Chakki Road, near Karamsar Colony, Ludhiana.

Versus

1- Arora Nursing Home, Surgical Maternity and Dental Clinic, Chowk Baba Than Singh, Samrala Road, Ludhiana, through its Sen. Dr. D.P. Singh Arora, MBBS, MS.

2- Dr. D.P. Singh Arora, M.B.B.S., M.S.,(Arora Nursing Home).

3- Deep Hospital, 81, Model Town, Ludhiana through its Sr. Dr. Nirmaljit Singh Malli, M.D., Ludhiana.

4- Oriental Insurance Company Limited, Branch Office-3, SCO-40, Feroze Gandhi Market, Ludhiana.

5- United India Insurance Company Limited, Branch Office at Ludhiana.

6- United India Insurance Company, Divisional Office No.1, Janpath 54, New Delhi.


1- In this complaint under section 12 of the Consumer Protection Act, 1986, complainant on account of medical negligence by Dr. D.P. Singh, opposite party no.2, running nursing home in the name and style of opposite party no.1, claimed compensation of Rs.10 lacs, for mental agony, suffering as well as harassment.

2- As per case of the complainant, in October, 2005, due to severe abdomen pain, consulted opposite parties no.1 & 2 on 24.10.2005 and was suggested removal of gall bladder stone, by way of laser operation/laparoscopy. At the time of operation, was told that instead of adopting laparoscopic procedure, operation would be done by way of open surgery. Consequently, on 24.10.2005, surgery was performed by opposite party no.2, to remove gall bladder stone. Despite operation, complainant felt stomach pain and opposite party on consultation, told that the pain was on account of operation and will cease within 2-3 days.

But pain continued and second medical check up was done by opposite party no.2, who consequently, advised that it was on account of leakage of water, caused during operation and then put a pipe in abdomen, to discharge the water. Despite it, no relief was felt. Then opposite party no.2 suggested for ERCP test which she got conducted on 11.12.2005 from opposite party no.3 hospital, who after test, apprised that part of stone is left in gall bladder. Alongwith ERCP report, opposite party no.2 was consulted, who suggested another operation and removed pipe from her stomach, put at the time of operation. In December, 2005, condition of the complainant became critical, due to immense stomach pain. Therefore, Khosla Hospital was approached, where tests were conducted and thereafter, went to Civil Hospital, Ludhiana. After perusal of previous medical record of the complainant, was apprised that opposite party no.2 had negligently cut off CBD at the level of Cystic Duct Junction and suggested another operation from Ganga Ram Hospital, New Delhi.

With that report of Civil Hospital, Ludhiana, complainant again contacted opposite party no.2, to conduct the operation, but they refused to do so. So, claimed that opposite party no.2 was negligent in conducting operation and did not disclose true position to the complainant. Opposite party no.3 after taking ERCP test, falsely told the complainant that it was a case of cholido cholithiasis and did not disclose about complete cut off the CBD. This he did in connivance with opposite parties no.1 & 2. For taking treatment, complainant was compelled to sell ornaments and paid Rs.40500/- to opposite party no.2 and spent Rs.25000/- for other expenses. So, on account of such medical negligence, compensation is sought from the opposite party.

3- Opposite party no.1 in reply, claimed that complainant has not disclosed acts of omission and commission of opposite party no.2 and that allegations against them, are misconceived, vexatious and frivolous. Complaint is filed to harass and defame opposite party no.1 and to extract illegal sum, by abusing process of law. The hospital and opposite party no.2 are not liable to pay even a single penny.

However, it is admitted that complainant was got operated for removal of gall bladder from opposite party no.2, Operation is claimed successful and after such operation, complainant started taking food. But from abdominal drain, bile started coming out. Therefore, on 2.11.2005, another drain was put in with her consent. Condition of the complainant improved and started getting better. ERCP was done at Deep Hospital (opposite party no.3), at concessional rates, for which opposite party no.2 personally accompanied her. Allegations of negligence are false. Bile drains were removed on 13.12.2005 and 22.12.2005. There was no negligence in treatment. Case being false, deserves dismissal.

4- Opposite party no.2 on similar lines and defence of opposite party no1, has filed separate written statement. As defence of both of them, is identical, so reply of opposite party no.2, is not being discussed.

5- Opposite party no.3 claimed that complaint against them, is not maintainable. Because, they only did ERCP test on 17.11.2005 and not on 11.12.2005, as alleged by the complainant. Case was referred by opposite party no.2. During test, it was detected that the complainant had complete cut off on CBD Cystic Duct Junction and cholido cholithiasis (evidence of stone in the lower part of CBD). Both abnormalities were explained in detail to the complainant and her attendant.

The abnormalities were clearly described in the report handed over to the complainant. She has made false allegations against them. For such test, complainant was charged Rs.2500/- against normal fee of Rs.5000/-, on the request of opposite party no.2. As she was a poor patient. They have been falsely impleaded in the case of the complainant and hence, complaint against them, deserves dismissal. Further claimed that Dr. Nirmaljit Singh of opposite party no.3 hospital, had obtained professional indemnity policy from Oriental Insurance Company (opposite party no.4) and the company stood guarantor of the doctor under the policy. There was no deficiency ins service on their part. Complaint deserves dismissal.

6- Opposite party no.4 Insurance Company of opposite party no.3, by way of separate written statement, has also claimed that the complaint is not maintainable. They have denied any negligence on part of opposite party no.3, have prayed for dismissal of the complaint.

7- Opposite parties no.5 & 6 Insurance Companies, have pleaded that opposite party no.2 had taken insurance policy from them and they have accepted written statement of opposite party no.2, in totality.

8- Parties led evidence in support of their claims, by way of affidavits and documents. We have heard ld. counsel for parties and scanned the documents and other material placed on the file carefully.

9- It is admitted case that complainant on account of severe abdomen pain in October, 2005, got herself operated from opposite party no.2, a doctor in hospital of opposite party no.1. Such operation was got conducted after getting ultrasound scan of the abdomen and obtain report dated 17.10.2005(Ex.C1).As the complainant had a gall bladder stone, so from ultrasound scan report Ex.C1, we would be referring only, report pertaining to gall bladder. Report shows that the gall bladder was normal in size, shape and outline lie, Walls slightly edematous. A calculus of size 18mm seen impacted in neck of gall bladder. It was for removal of this calculus (stone) of gall bladder that the complainant got herself operated from opposite party no.2 on 24.10.2005, as appears from record of the hospital, copy of which is Ex.C4 and Ex.C6.

10- It is in the backdrop of aforesaid undisputed factual position of the case that we shall now look into case of the complainant, qua medical negligence of opposite party no.2. Thereafter, we would consider allegations of negligence against opposite party no.3.

11- For arriving at the conclusion on allegations of medical negligence by opposite party no.2, we have to see sequence of events, leading to abdominal surgery of the complainant, for removal of gall bladder stone. The stone was of the size 18mm, impacted in neck of gall bladder, as apparent from ultrasound scan report Ex.C1 dated 17.10.2005. For removal of the stone, laser operation/laproscopy, was not preferred, but open surgery was conducted, to remove the stone, which had impacted in neck of gall bladder. Allegations of the complainant which she has sworn by way of own affidavit and to some extent, conceded by opposite party no.1 & 2 in their reply, are that despite operation, complainant continued to suffer with abdomen pain.

Though, they have also pleaded that after such operation, condition of the complainant had improved. We are sorry to say that there is no material brought on the record, by opposite party, to prove this point. Neither, they have placed on the record, complete treatment record of the complainant or subsequent actions of treatment provided by them to her, except affidavit Ex.RW1/A of opposite party no.2, Ex.RW2/A of Dr. Inderjit Singh and Ex.RW3/A of one Bhupinder Singh, claiming to be ward boy in nursing home of opposite party no.1. Dr. Inderjit Singh simply filed 7 lines affidavit to the effect that opposite party no.2 had diligently, with due care and caution, dealt with the case of cholecystitis in reference of ERCP. He had shown proper skill and care in treating the patient. Whereas, ward boy Bhupinder Singh, on similar lines, has given his affidavit. Opposite party no.2 in his affidavit Ex.RW1/A, has claimed that case is filed, to harass and defame him and is based on baseless and false allegations. Allegations are false. Complainant not entitled for any compensation. Treatment was provided to the complainant diligently with care, due caution and allegations levelled are false. However, he stated therein that condition of the patient improved, started taking food, but from abdominal drain, bile started coming out. On 2.11.2005, patient had pain in abdomen and drain was put in on 4.11.2005 with consent. Condition improved and started getting better. ERCP was done in Deep Hospital, at concessional rate and he personally accompanied the patient. The patient improved and bile drain removed on 13.12.2005 and 22.12.2005.

12- This affidavit of opposite party no.2 gives us clear idea that despite operation, complainant still continued to suffer under pain for which, time and again consulted opposite party, who changed the drain. Such defence of opposite party has to be seen in the light of material brought on record by the complainant, to conclude whether opposite party no.2 was negligent in operating the complainant. For such purpose, we shall have to refer ourselves to Ex.C3, copy of ERCP report. The report on CBD (Common Bile Duct) and conclusions of the test are relevant. The CBD report is as under:-

Normal in mid & lower CBD Complete cut off at the level of junction with cystic duct 1 cms sized filling defect in lower CBD.



13- The conclusion noted therein, is as under:-

Complete cut off CBD-cystic duct junction.

Chledocholithiasis.



14- Thus, it is apparent from this report Ex.C3 that there was complete cut off CBD cystic duct junction 1 cms size.

15- Such complete cut off CBD-cystic duct junction, certainly would have been caused while surgery was being done, to remove gall bladder stone of the complainant. It was such injury to cystic duct junction, which caused immense pain, suffering to the complainant and due to such reason, consequently, we have no reason to disbelieve claim of the complainant that opposite party no.2 explained that pain occurred due to leakage of water, caused during operation and consequently, a pipe was put in abdomen, to discharge water. Despite it, no relief was felt. Then ERCP was suggested. Subsequently, complainant consulted Khosla Hospital, on 1st January, 2006, where she complained of choledocholithiasis since two months back, followed by CBD injury of T-Tube drainage. In Khosla hospital, they repeated findings of ERCP dated 17.11.2005, as complete cut off CBD at the level of cystic duct junction and advised T-Tube choledocholithiasis.

16- Thereafter, complainant to relieve herself from pain, consulted and got examined from doctors of Civil Hospital, Ludhiana, vide OPD slip Ex.C7 dated 9.10.2006 and also got examined from Arora Neuro Centre on 13.10.2006, obtained radiological opinion Ex.C8, on the basis of MRCP. The radiological opinion of Arora Neuro Centre, is as under:-

Radiological Opinion:-

MR findings are C/W dilatation of the intra hepatic billary radicals which can be traced upto the level of porta-hepatis (Confluence of the left & right ducts) beyond which shows evidence of abrupt “cut off”- likely post Cholecystectomy Stricture.



17- So, this also confirms that there was a complete cut off CBD at the level of cystic duct junction.

18- For further treatment, complainant went to AIIMS, New Delhi, as apparent from treatment record Ex.C21 to Ex.C32.

19- In these circumstances, it is established beyond doubt that complete cut off CBD at the level of cystic duct junction occurred when complainant underwent surgery, to remove gall bladder stone from opposite party no.2. While removing the stone, he negligently caused cut off CBD at the level of cystic duct junction and failed to rectify the same, before closing the wound after operation. Due to such reason, complainant continued to suffer under pain and was forced to undergo various tests and subsequently, got cured by taking treatment in AIIMS, New Delhi.

20- In such circumstances, we have to see whether this happened on account of medical negligence by opposite party no.2.

21- Hon’ble Apex Court in Martin F. D’Souza Vs. Mohd. Ishfaq 1 (2009) CPJ 32 (Supreme Court), has clearly laid principles that a doctor can not held negligent, because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. But he would be liable only if his conduct fell below that of the standards of a reasonably competent practitioner in his filed.

22- In another case titled as State of Punjab Vs. Shiv Ram & Ors. 2005 (3) Apex Criminal 268 (Supreme Court), their Lordships have laid guidelines for concluding a professional liable for negligence. It is held that he can be declared to be negligent on one of the two findings (i) either he was not possessed by the requisite skill which he professed to have possessed; (ii) or he did not exercise with reasonable competence in the given case, skill which he possessed. Further, it was concluded that unless negligence is established, primary liability can not be fastened on the medical practitioner.

23- In the instant case, there is no allegations that opposite party no.2 had no requisite skill, to operate the complainant. But it is established beyond doubt that while operating the complainant, for removal of gall bladder stone, opposite party no.2 did not exercise competence despite possession of skill by him. As at the time of removal of the stone, he negligently made a complete cut off CBD at the level of cystic duct junction, due to which complainant continued to suffer for more than a year, under pain and agony. He took no steps to treat the complainant before closing the wound. He could have noticed CBD injury before closing the wound, but did nothing. Simply had been putting in drain, to discharge water from the stomach. But failed to visualize the complication and treat the same, which complication he had negligently caused while conducting surgery.

24- In this scenario of the case, it is fully and clearly established that opposite party no.2 was medically negligent, when conducted surgery on the complainant, for removal of gall bladder stone, by making complete cut off CBD at the level of cystic duct junction. Therefore, medical negligence on his part is fully born out on the record.

25- We must say that the case of the complainant against opposite party no.3, is totally baseless and he has been unnecessarily dragged to the litigation. Because ERCP was got done by the complainant from opposite party no.3, he in his report Ex.C3, gave clear findings, which we have discussed at earlier part of the judgment. So, nothing was withheld by opposite party no.3 from his report given to the complainant after ERCP report. He can not be accused to conniving with opposite party no.2, by not explaining the report to her or not giving clear findings. Therefore, complaint against opposite party no.3 deserves to be dismissed, which order we accordingly pass.

26- In view of proved medical negligence of opposite party no.2, a doctor in hospital of opposite party no.1, we consequently, allow this complaint against opposite parties no.1 & 2.

27- Now coming to question of compensation. Complainant has suffered immensely since the day of her operation on 24.10.2005 and thereafter, continuously remained suffering under pain for removal of which, visited opposite party no.2 time and again and thereafter, went to Khosla Hospital as well as Civil Hospital, Ludhiana and ultimately, got herself relieved of the suffering, by getting treatment in AIIMS, New Delhi, in January, 2007. Complainant spent huge amount on her treatment qua which, has placed on the record, copies of retail invoices Ex.C9 to Ex.C20. Suffering of a human being can in no way be compensated by monetary compensation. Only the person knows where his shoe pinches in. A person seeks treatment from a doctor, to get relief of the suffering and pain, but instead of being treated properly, got another problem due to negligence of the doctor, such person deserves to be compensated, which may cause consolation to the patient that justice has been done and such may change his or her feelings, to relieve of the pain as well as memories of such pain. All these aspects have to be kept in mind while assessing the amount of compensation.

28- Complainant as per her own case, spent Rs.65500/- on treatment and other connected expenses, in addition to such amount, would have been entitled for compensation to relieve her of inconvenience suffering due to pain, visiting different hospitals for a year. We feel in scenario of the case that compensation of Rs.1,50,000/- shall be just and proper, to relieve of the suffering and pain of the complainant. Therefore, we order opposite parties no.1 & 2 to pay compensation of Rs.1,50,000/-(Rupees One Lac & Fifty Thousand only) to the complainant with litigation costs of Rs.5000/- within 45 days of receipt of copy of order, failing which shall be liable to pay interest @ 9% p.a. on this amount from the date of complaint till payment. As opposite party no.2 had taken insurance from opposite party no.5, so opposite party no.2 would be liable to get reimbursed under the insurance policy from opposite party no.5.