Haryana

Karnal

514/12

Balbir Singh S/o Duni Chand - Complainant(s)

Versus

Ajay Gupta's Advanced Endoscopy Centre & Gut. Liver & Child CliniAc - Opp.Party(s)

Sh. Rahul Mohan

12 Oct 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL. 

                                                     Complaint No.514 of 2012

                                                    Date of instt.: 22.10.2012

                                                     Date of decision: 12.10.2017

 

1. Balbir Singh son of Duni Chand.

2. Meena Chahal daughter of Balbir Singh

3. Yogita daughter of Balbir Singh aged 9 years all residents of village Bhaini Majra Tehsil and District Kaithal Haryana, minor claimant no.3 through his father and natural guardian Shri Balbir Singh.

                                                              ……..Complainants.

                                        Vs.

1. Dr. Ajay Gupta’s advanced Endoscopy Centre and Gut.Liver & Child Care Clinic, 358 Sector 13 Extension Karnal.

2. Dr. Ajay Gupta c/o Dr.Ajay Gupta’s advanced Endoscopy Centre and Gut. Liver & Child Care Clinic, 358 Sector 13 Extension Karnal.

3. United India Insurance Company Ltd. having branch office at 60, Janpath Connaught Place New Delhi-110001 through its Professional Indemnity Policy no.040100/46/11/35/00003062 effective from 27.8.2011 to 26.8.2012.

                                                                    ..… Opposite Parties.

                  Complaint u/s 12  of the Consumer Protection Act.

Before      Sh.Jagmal Singh……….President.

                Sh.Anil Sharma…….Member.

 

Present:-  Shri M.R. Sangwan Advocate for complainants.

                Shri Vishal Goyal Adv. for opposite parties no.1& 2.

               Opposite party no. 3 exparte.

                 

                 (JAGMAL SINGH, PRESIDENT)

 

 ORDER:

 

                This complaint has been filed by the complainants u/s 12 of the Consumer protection Act 1986, on the averments that Smt. Kelo Devi (since deceased) wife of complainant no.1 and mother of complainants no.2 and 3 was taken to the hospital of opposite parties no.1 and 2 for removal of the gallstone. The opposite party no.2 checked the B.P. of wife of complainant no.1 and told that B.P. was high and gave medicines and asked to come after 3 days for operation for removal of the gallstone with the help of endoscopy and got deposited Rs.25000/- as medicines charges and Rs.10,000/- as operation charges. On 15.6.2012 complainant no.1 and his wife visited the hospital and his wife was taken to the operation theatre and operation was done at about 9.00 a.m. At the time of operation, the doctor did not give her any sedative or anesthesia. The staff members of the opposite parties no.1 caught hold the deceased from her hands, legs and mouth and inserted a tube in her stomach through mouth. His wife was conscious when the operation was done and she was having difficulty and pain during the operation. His wife was  go out from the operation theatre at about 11.30 a.m. His wife was crying with pain in her abdomen and when he asked as to why she was crying, the opposite party no.2 said that a little pain usually occurs after that operation and gave her sleeping injection and at 2.00 p.m. the opposite party no.2 told that his wife was alright and take her to home.  However, condition of his wife was not good. She was feeling severe pain in her abdomen and her stomach was distended. Blood was also oozing from her nose and pipe was also inserted in her nose. Opposite party no.1 forced him and his wife to go home, however he requested that since the condition of his wife was not good so they would stay in the hospital in the night and on much persuasion and on his request the opposite party no.2 became ready to keep his wife in the hospital. In the night his wife was having difficulty in urination and he called the doctor and the hospital staff on duty to attend the patient, they refused and did not come to see and check her. On the next morning i.e 16.6.2012 an ultrasound was to be conducted. At that time opposite party no.1 referred his wife to Ganga Ram Hospital, New Delhi saying that she was having B.P. problem and that only one or two tests would be conducted and you would come back. Since the condition of his wife was serious, she was admitted in ICU and incubated and was put on mechanical ventilator and her treatment was stated. Many tests including her heart, kidney, liver etc. were conducted. CT scan was also done and it was reported that the doctor who had conducted the operation for removal of gallstone had cut the small intestine. On 17.6.2012 three operations of the deceased were conducted. On 18.6.2012 another operation was done for decreased urine output and since the tests of her wife were showing indications of her kidney failure, therefore, hemodialysis to remove the waste products from the kidney was done on 20.6.2012. Again on 25.6.2012, CT scan was conducted and on 29.6.2012 two more operations were conducted. However, despite so many operation Smt. Kelo Devi did not survive and on 30.6.2012 at about 8.50 p.m. she was declared dead. Except for suffering from a stone in her gall duct Smt. Kelo Devi had no other medical problem and was having good health. She was the age of 45 years and had healthy and strong body. The operation for removal of gallstone was a very minor operation/procedure which could not cause any complication. But due to negligence on the part of the opposite parties no.1 and 2 the operation was performed in a very casual and negligent manner and small intestine was cut during the procedure of operation and resulted to the death of his wife. His wife was doing all the house hold work besides this she was an expert tailor and embroider and for this work she was earn approximately Rs.3000/- per month. Due to negligent act of the opposite parties no.1 and 2 complainants have suffered not just loss of love and affection and consortium but  also suffered loss of earning and services being rendered by Smt. Kelo Devi to the entire family. They spent more than Rs.9 lakh on the treatment of Smt. Kelo Devi. Hence, there was deficiency and negligence on the part of the opposite parties no.1 and 2 and the complainants being the legal heirs of deceased are entitled to claim compensation on account of death of Kelo Devi (since deceased).

2.             Notice of the complaint was given to the opposite parties, opposite parties no.1 and 2 appeared and filed written statement raising preliminary objection regarding that there was no deficiency in service; complaint is false and frivolous; abuse of process of law; concealment of facts and non-joinder and mis-joinder of the parties. On merits, it has been submitted that Smt. Kelo Devi came to the Hospital of opposite party no.1 on 12.6.2012 for ERCP (Endoscopic Retrograde Cholangio Pancreatography) to be conducted by opposite party no.2 for CBD stones. She was examined and found to be suffering from Hypertension, accordingly she was advised to approach some higher centre for ERCP, though keeping in mind her high B.P. she was prescribed antihypertensives and other medicines as per her symptoms to be consumed at home. On 12.6.2012, the patient was brought again to the opposite party no.2 on 15.6.2012 complainant insisted him to conduct the procedure of ERCP. However, she was examined again thoroughly and all her vital parameters including B.P. were found to be within normal range. The complainant was explained about the pros & cons of the procedure in his own language with a specific mention that like other surgeries, this procedure also cannot be taken as fool proof. Complainant gave his written consent permitting opposite party no.2 to conduct the procedure. The procedure was performed by opposite party no.2 most diligently and prudently with due care and caution as per standards of medical ethics and 5-6 stones in CBD were removed. Post-operatively the patient was feeling comfortable. Patient was given pain killers and supportive treatment as some degree of distension is expected after every ERCP and a Ryle’s tube was placed and her condition was monitored personally by opposite party no.2, who found all her vital parameters in normal range. But, when the patient continued to have some degree of distension and pain, her husband was candidly informed that the patient might have developed some swelling (pancreatitis) or leak as patient had a diverticulum and will require x-ray/USG and CT scan next day as these are known complications of ERCP as clearly mentioned not only in the consent form but also explained in person. Opposite party no.2 prescribed necessary medication. When she complained difficulty in passing urine, a Foley’s catheter was placed at 10.00 p.m. resulting that after some times she passed about 600-700 ml of urine and expressed her comfort and satisfaction with the treatment so given by opposite party no.2. Next morning on 16.6.2012, the patient suddenly developed tachycardia and Hypotension needing ICU care and cardiac evaluation as well as evaluation of the cause of distension. Considering patient’s interest, matter was briefed to D. Anil Arora of SGRH and she was shifted to SRGH in a stable condition. CT Scan conducted at SGRH revealed that she was suffering from duodenal perforation which is a known complication of ERCP. The patient remained under treatment at SRGH for about ten days and when was recovering well of this complication, on 25.6.2012, she developed another complication of Sigmoid colon perforation cause of which is not known and underwent repeat surgery but could not survive despite best efforts of the doctor of SGRH and died on 30.6.2012. Patient had recovered well from the complication of ERCP, but later had un-explained sigmoid colon perforation with fecal peritonitis, which is no way can be attributed to ERCP and probably that proved fatal. There was no negligence on the part of the opposite parties no.1 and 2. All the procedure of ERCP was conducted as per standard practice of medical science. Hence complainant is neither entitled for any relief nor the opposite parties are liable to pay any compensation.

3.             None has put into appearance on behalf of opposite party no.3 despite service, hence exparte proceeding were initiated against him by order dated 10.07.2013of this Forum.  

4.     Complainant tendered into evidence affidavit of complainant no.1 Ex.C1/A and documents Ex.C2 to Ex.C30.

5.             On the other hand, opposite parties tendered into evidence affidavit of Ajay Gupta Ex.OW2/A and documents Ex.O1 and Ex.O18.

6.             We have heard the learned counsel for the both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             From the pleadings and evidence of the case, it is clear that there is no dispute that Smt. Kelo Devi wife of complainant no.1 and mother of complainants no.2 and 3 was taken to opposite party no.1 the hospital of opposite party no.2 on 12.6.2012 for removal of gallstone. It is also not disputed that on 15.6.2012 deceased Kelo Devi was admitted in the hospital of opposite parties and procedure of ERCP conducted for removal of the gallstone. There is also no dispute that on 16.6.2012 the deceased suddenly developed tachycardia and Hypotension needing ICU care and cardiac evaluation as well as evaluation of the cause of distension, so she was referred to SGRH, New Delhi by the opposite parties no.1 and 2. There is also no dispute that she remained admitted in SGRH upto 30.6.2012 when she breathed her last.

8.             According to the complainant the opposite parties no.1 and 2 did not give any sedative or anesthesia at the time of operation but according to medical jurisprudence no sedative or anesthesia is required in the ERCP. Therefore, this contention of complainant has no force.

9.             On 16.6.2012 late Smt. Kelo Devi was admitted in SGRH where as per clinical and CT Scan finding, it was diagnosed that she had duodenal perforation with peritonitis, so accordingly she was treated for the same. According to the complainant the duodenal perforation was caused due to negligence of the opposite parties which resulted into the death of deceased Kelo Devi in SGRH. No doubt the duodenal perforation had occurred during the procedure of ERCP, but this does not mean that the opposite party no.2 was negligent in performing the procedure of ERCP.

10.           It is pertinent to mention here that besides the present complaint, the complainant Balbir Singh has made a complaint to the Superintendent of Police (SP) Karnal against the opposite parties. It is pertinent to mention here that the SP, Karnal sent the said complaint to the Civil Surgeon for getting the matter enquired by constituting a Committee of three doctors as well as for the expert opinion. Accordingly, the Civil Surgeon Karnal on receipt of the complaint from SP, Karnal, constituted a Committee of three doctors. The Committee enquired into the matter and submitted its report Ex.O-15 to the Civil Surgeon, Karnal. The Civil Surgeon, Karnal sent the said report of the Committee to the SP, Karnal, vide letter Ex.O-14. The Civil Surgeon has specifically mentioned in letter Ex.O-14 that he agreed with the report of the Committee. From the perusal of report Ex.O-15, it is clear that the Committee of three doctors found that there was no negligence on the part of the Dr. Ajay Gupta i.e. opposite party no.2. As already stated above the Civil Surgeon Karnal has also agreed with this report of the Committee. From these documents, it is clear that according to the expert opinion, there was no negligence on the part of the opposite parties no.1 and 2 is performing the procedure of ERCP of deceased Smt. Kelo Devi.

11.           It is further pertinent to mention here that the complainant namely Balbir Sigh has also filed a Criminal Complaint in the court of Learned Judicial Magistrate, Karnal against Dr.Ajay Gupta i.e. opposite party no.2 as well as some other person. In that complaint said Balbir Singh has got examined Dr. Pankaj Tyagi and Dr. S.Nandi of SGRH besides other witnesses while producing his evidence before summoning of the accused. The Court of Learned JMIC Karnal while considering the evidence produce by the complainant has not summoned the accused and dismissed the complaint, vide order dated 4.4.2015, the copy of which has been placed on the file by the opposite parties as Ex.O12. From order dated 4.4.2015 Ex.O12 it is clear that the evidence produced by said Balbir Singh was not sufficient to prove the negligence on the part of the Dr. Ajay Gupta i.e. opposite party no.2 and  due to this reason the complaint filed by the said Balbir Singh was dismissed.

12.           Learned counsel for the complainant has placed on this file, the copy of statements of Dr. Pankaj Tyagi and Dr.S.Nandi of Sir Ganga Ram Hospital, New Delhi. These statements are the copies of the statements which were recorded in the Criminal Complaint filed by the complainant in the Court of Learned Judicial Magistrate, Karnal. The learned counsel for the complainant stressed that from these documents it is proved that there was  negligence on the part of the opposite parties, but these doctors were not crossed examined by the opposite parties and only examination-in-chief of these witnesses was recorded and without cross examination by the other party, the same are not admissible in evidence. So the same are not helpful to the complainant in any manner. Moreover neither of the doctor has stated in these statements that opposite party no.2 was negligent in performing the procedure of ERCP and this is the reason that the court of JMIC, Karnal has not summoned the accused.

13.           Learned counsel for opposite parties referred the death summary issued by the Sir Ganga Ram Hospital, New Delhi the copy of which is Ex.O1. It  has been mentioned in the death summary repair of duodenal laceration was done and GJ and FJ was performed on 17^th June, 2012. SLED was done on 18^th June, 2012for decreased urine output. Urine output was improved gradually and inotropic support was gradually reduced. The learned counsel for the opposite parties no.1 and 2 contended that later on sigmoid colon had taken place in SGRH while treating the patient. The contention of opposite party no.1 and 2 has forced to because the death summary Ex. O-1, revealed that patient underwent re-exploration on 29.06.2012 and  sigmoid colectomy (Hartmann’s procedure) with repair of previous FJ was done. Patient developed nil urine output for which Nephro reference was taken. It is further mentioned in the death summary that patient was developed sudden cardiac arrest and was given CPR according to standard ACLS guidelines, but patient could not survive. Therefore, the death summary revealed that the death of the patient may be due to sigmoid colon because there was improvement in duodenal perforation. Moreover, it is admitted by the complainant also alleged that on 17.6.2012, three operations were conducted upon the deceased and again on 18.6.2012 another operation (SLED) was conducted upon the deceased Smt. Kelo Devi for decreased urine output. It is also admitted by the complainant that on 25.6.2012, CT Scan was conducted and on 29.6.2012 two more operations were conducted upon the deceased.  So, the possibility of occurring the segmoid colon during these operations at SGRH cannot be ruled out. But SGRH has not been made party in this compliant by the complainant.

14.           To prove the allegations regarding negligence on the part of the opposite parties no.1 and 2, the complainants besides their affidavits, produced copy of complaint made to S.P. Karnal as Ex.C2, copies of newspapers cutting Ex.C3 to Ex.C5, copies of statements of Dr. Pankaj Tyagi and Dr. S. Nandi of SGRH as Ex.C6 and Ex.C7 recorded in a criminal complaint filed by the complainant in the court of Judicial Magistrate, Karnal, copy of CT scan report Ex.C8 and copy of enquiry report conducted by a Committee of three doctors constituted by civil surgeon, Karnal on the request of S.P. Karnal as Ex.C9. As already stated above, the complainants have placed on the file the copies of statements  Ex.C6 & Ex.C7 of Dr. Pankaj Tyagi and Dr. S. Nandi of SGRH recorded in the criminal complaint before the JMIC Karnal and the same are not admissible in evidence because these statements are only the examination-in-chief of the witnesses and there is no cross examination of these witnesses by the opposite parties. So, these statements are of no help to the complainants. Similarly, the copies of newspapers cutting Ex.C3 to Ex.C5 are not substantive evidence. As already stated above, according to the report Ex. O-15 of the Committee of three doctors which is expert opinion, it is clear that no negligence was found on the part of Dr. Ajay Gupta i.e. opposite party no.2 while conducting operation/ERCP of the late Smt.Kelo Devi.             

15.           According to Medical Profession relating to endoscopy, a gastroenterologist doctor is competent to perform ERCP. The opposite party no.2 has a degree in gastroenterology, therefore, the opposite party no.2 was competent to perform the ERCP. The opposite party no.2 is a qualified doctor, who performed the ERCP on the deceased. Every operation is always attended by considerable risk and every advance in technique is also attended by risks. What care and cautions, the opposite party no.2 has not taken while conducting the ERCP, the complainants have failed to prove on the file and without any cogent evidence, it cannot be said that the opposite party no.2 was negligent in performing the ERCP. The complications are accompanying part of any operation/surgery and they could occur to any person at any time. A doctor never undertakes to cure a person and he can exercise his best care for the welfare of patients and he cannot guarantee the hassle-free system to the patient. Moreover, in the present case, the OP2 consulted Dr. Anil Arora of SGRH and thereafter referred the patient to SGRH on the 16.6.2012 i.e. the very next day.  

16.           In the above facts and circumstances of the case, we are of the considered view that no negligence on the part of the OPs no.1 and 2 has been established on the file by the complainant in this case.

17.          Thus, as a sequel of above discussion, we do not find any merit in the present complaint and the same is hereby dismissed. No order as to costs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:12.10.2017

                                                             

                                                         President,

                                                 District Consumer Disputes

                                                    Redressal Forum, Karnal.

                               (Anil Sharma)

                          Member