Haryana

Ambala

CC/177/2021

Smt Anita - Complainant(s)

Versus

Dr Sudhir Kapoor - Opp.Party(s)

D.P. Balian

12 Feb 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	177 of 2021
Date of Institution	:	11.05.2021
Date of decision	:	12.02.2024

Smt. Anita W/o Sh. Harinder Garg, resident of House No.711/2, Guru Arjunpura Manav Chowk, Ambala City.

          ……. Complainant

Versus

1. Dr.Sudhir Kapoor, Kapoor Hospital, Near Police Line Chowk Lines, Ambala City.
2. Dr.Virender Dhankar, Urologist, Mayu Hospital, Mohali.
3. United India Insurance Company Limited, SCO No.177-178, Sector 8-C, Chandigarh.

   ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Dharam Pal Balian, Advocate, counsel for the complainant.

                   Shri S.S.Sikand, Advocate, counsel for OP No.1.

                   Shri R.K. Vig, Advocate, counsel for OPs No.2 and 3.

Order:        Smt. Neena Sandhu, President.

1.                The complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’)  against the Opposite Parties No.1 and later on impleaded OPs No.2 and 3 also (hereinafter referred to as ‘OPs’), praying for issuance of following directions to them as under:-

1. To pay Rs.3 lacs as compensation alongwith interest @ 18% p.a.
2. To pay litigation expenses.
3. Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that the complainant was suffering kidney stone problem and her urine was not passing properly. At the same time, she was also suffering acute kidney pain. As such, she consulted OPs No.1 and 2. OP No.2 advised the complainant for immediate operation for package of Rs. 35,000/-. On 20.02.2021, the complainant was admitted in  OP No.1 hospital and remained admitted there in the hospital and was discharged on 23.02.2021. During this period OP No.2 conducted operation upon the complainant and assured her that stones from both the kidnies have been removed and that the problem has been removed permanently.  After conducting operation, the complainant visited the hospital of OP No.1 as per his advice for regular check up and for every check, the OP No.1 charged consultation fee from the complainant and also charged Rs. 6600/- as room charges, Rs. 1200/- as pre-operation charges i.e. totalling to Rs.42,800/- from the complainant for operation which excluded consultation fee and other misc. expenses against settlement of Rs.35,000/-. The OPs No.1 and 2 have not handed over the ultrasound report, X-Ray and the relevant reports of other examinations conducted by them to the complainant.  However, the complainant was still suffering with the same problem and has acute pain in her kidnies despite of operation conducted by the OPs No.1 and 2. Thereafter, the complainant got her ultra-sound conducted on 30.03.2021 from SHIVI Imaging Centre Ambala City and the report shows its remarks:- *Mild Left hydroureteronephrosis with left uteteric calculus of size app.x. 6 mum at VU junction. Few tiny echogenie foci in both kidneys - renal concretions/microlithiasis/?calcifications", meaning thereby the OPs No.1 and 2 have not conducted any operation upon the complainant to remove  kidneys stones. Under those circumstances, the complainant also served notice upon the OPs on 2.4.2021 in the matter but except frivolous reply no steps were taken by OPs No.1 and 2 to compensate the complainant.   Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version and  raised preliminary objections to the effect that the complainant has concealed the material facts from this Commission; that the complaint of the complainant is bad for non-joinder of necessary parties as she was operated by Dr. Varinder Dhankar, Urologist, now working in MAYO Hospital, Mohali, therefore, the complaint is liable to be dismissed on this ground etc. On merits, it has been stated that the complainant was admitted on 20.02.2021 and in her USG report dated 20.02.2021 few renal calculi largest 4.8 mm. in left kidney and 11 mm. in renal calculi distal part of left ureter. Her CT Scan was also done on 20.02.2021 at Rotary Ambala Cancer and General Hospital. Her report was different from Ultrasound report. In report there were bilateral renal mid and lower pole calculi as described in the report. Moderate right renal hydronephrosis without thinning of parenchyma with dilated upper ureter with calculi 7.84 x 6.4 mm. at right UV junction. There was mild L-renal hydronephrosis without thinning of the parenchyma with dilated ureter with calculi in the left lower ureter at left UV junction (size 10.5 x 9.4 mm). In addition to this, all routine and renal functions tests were done. Her serum cretinine was increased i.e. 2.69 due to stones impacted in both lower ureters. So surgery was planned and done to remove stones present in both lower ureters and B/L DJ stening was done. Nothing was done for Bilateral renal calculi as these calculies were small in size and pass itself with medical management. No surgery was required for these small calculi. The complainant was again investigated on 22.02.2021 and her serum cretinine was 1.61 and blood urea 42 mg./de The complainant was discharged and advised for follow-up in OPD. Subsequently, the complainant came in OPD and her B/L DJ Stents were removed later-on. The record of entire treatment is with the complainant. Both the kidneys were having renal calculi these can move down to the ureters. This is not because of any negligence on the part of treating doctor. The complainant was asked to have again CT Scan or further investigations and medical treatment which the complainant did not follow. The complainant was having treatment from some other doctor whose record she never showed. Even in reply to the notice, the complainant was asked to come for follow-up action but she failed. Dr. Varinder Dhankar, who is Urologist and under whose treatment the complainant was, had not conducted any surgery to remove kidney stones, rather he had conducted surgery to remove stones from ureters. Kidney stones were very small and she was advised for medical management by way of medicines. Kidney stones can occur at any time even after the removal of stones from the ureters. Rest of the averments of the complainant were denied by OPs No.1 to 4 and prayed for dismissal of the present complaint with costs.
4.           Upon notice, OP No.2 appeared and filed written version and raised preliminary objections to the effect that the complainant has no locus standi to file the present complaint; the complainant has not come to this Commission with clean hands and has concealed the true and material facts. Dr. Virendra Dhankar was called by Dr. Kapoor/OP No.1 General Surgeon, Kapoor Hospital, Ambala City on Sunday. The patient required emergency treatment in view of obstructive uropathy (obstruction to urinary pipe (ureter) due to stuck stone in tube of both Kidneys) serum ceratinine the parameters of Kidney function was deranged scientific way. She underwent Bilateral URI & B/L DJ. The stone in both ureters were fragmented & B/L DJ stent was inserted scientifically. Her Kidney function improved after the operation as evident by serum ceratinine decrease postoperative. It is standard line of treatment that was required to be followed in emergency. It is clearly mentioned in prescription slip & notes also that only URS procedure to remove stone in ureter was done by the OP No. 2. The complainant never approached any Higher Authority regarding any negligence on the part of the OP No. 2. Applying the law of National Consumer Disputes Redressal Commission, New Delhi high lightened that Medical Council Act- Medical Negligence-Proof-Choice of one reasonable course of treatment to other-Not Negligence. There are so many Judgments passed by the Apex Court & Hon'ble National Commission held that Hospital & Doctors attended the patient with utmost care, caution & skills & with devotion & dedication. The doctor who performed the operation had reasonable decree of skill & knowledge & adopted the procedure which in their opinion was in the best interest of the patient. The complainant herself is liable for the lapses which she has tried to raise in her complaint relating to treatment for removal of stones and the OP No.2 has no role whatsoever to play in the so called alleged loss/damage caused to her as it is clearly mentioned in prescription slip & notes also that only URS procedure to remove stone in ureter was done by the OP No. 2. Dr. Virendra Dhankar, Urologist Specialist got insurance policy from United India Insurance Company, which is valid w.e.f. 07.12.2020 to 06.12.2021 and the complainant has no locus standi to file and maintain the present complaint as she has not impleaded United India Insurance company as necessary party in the complaint. A medical practitioner is not liable to be held negligent simply 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. The OP's/Doctors were qualified and they have treated her as per standard skill, with duty of care. Rest of the averments of the complainant were denied by OP No.2 and prayed for dismissal of the present complaint with heavy costs.
5.           Upon notice, OP No.3 appeared and filed written version wherein it raised preliminary objections to the effect that according to the Policy issued by the Insurance Company in favour of OP No. 2, a duty is cast to inform the OP No.2 and then only the role of OP No.3 would come into play to look into the complaint and dispose of the same strictly in accordance with terms and conditions of the policy; there is neither any deficiency on the part of insurance company qua the complainant nor there arose any occasion for the complainant to implead OP No.3 in the array of OP's; the complaint is not maintainable against the OP No.3 etc. On merits, it has been stated that the complainant herself is liable for the lapses which she has tried to raise in her complaint relating to problem in view of obstructive uropathy (obstruction to urinary pipe (ureter) due to stuck stone in tube of both Kidneys) serum ceratinine the parameters of Kidney function was deranged scientific way. She underwent Bilateral URI & B/L DJ. The stone in both ureters were fragmented & B/L DJ stent was inserted scientifically. Her Kidney function improved after the operation as evident by serum ceratinine decrease postoperative. The complainant, as is evident from the complaint, at no point of time, informed OP No.3 for so called deficiency, which she suffered on account of treatment being given to her by OP No. 1 & 2. OP No.2-Dr. Virendra Dhankar, Urologist Specialist got Insurance Policy from OP No. 3, which is valid w.e.f. 07.12.2020 to 06.12.2021. Dr. Virendra Dhankar was called by Dr. Sudhir Kapoor/OP No.1 General Surgeon, Kapoor Hospital, Ambala City on Sunday. The patient required emergency treatment in view of obstructive uropaty (obstruction to urinary pipe (ureter) due to stuck stone in tube of both Kidneys) serum ceratinine the parameters of Kidney function & was deranged. The emergency was tackled. It is clearly mentioned in operative notes also that only URS procedure to remove stone in ureter was done by the OP No. 2. She has been discharged from the hospital in a satisfactory conditions & all relevant record has also been handed over to her at the time of her discharge. OP No. 1 had paid Rs. 14,000/- to Dr. Virendra Dhankar/OP No. 2 for conducting surgery upon the complainant. Rest of the averments of the complainant were denied by OP No.3 and prayed for dismissal of the present complaint with heavy costs.
6.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A alongwith documents as Annexure C-A to C-N and closed the evidence on behalf of the complainant. On the other hand, learned counsel for OP No.1 tendered affidavit of Dr.Sudhir Kapoor, Kapoor Hospital, near Police Line, Ambala City as Annexure OPW1/A alongwith documents Annexure A to C and closed the evidence on behalf of OP No.1.  Learned counsel for OP No.2 tendered affidavit of Dr.Virendra Dhankar, Urologist, # 2691, Sector 79, Mohali as Annexure OP-2/A alongwith documents as Annexure OP2/1 and closed the evidence on behalf of OP No.2. Learned counsel for OP No.3 tendered affidavit of Tejinder Singh, Manager of OP No.3-Company-United Insurance Company Limited, Tirloki Chambers, 2^nd Floor, Ambala Cantt. as Annexure OP-3/A alongwith document Annexure OP-3/1 and closed the evidence on behalf of OP No.3. 
7.           We have heard the learned counsel for the parties and have carefully gone through the case file and also gone through the written arguments filed by the learned counsel for the OPs No.2 and 3.                                 
8.           Learned counsel for the complainant submitted that the act of OPs No.1 and 2 in not removing the kidney stones despite receiving huge amount, amounts to medical negligence.
9.           On the contrary, learned counsel for OP No.1 submitted that proper URS procedure to remove the stone in the ureter was done and the complainant was discharged in satisfactory condition. He further submitted that except bald assertions, the complainant has failed to place on record any evidence to prove that there was any medical negligence on the part of OP No.1. 
10.           Learned counsel for OP No.2 submitted that Dr. Virendra Dhankar was called by Dr. Kapoor, General Surgeon, Kapoor Hospital, Ambala City on Sunday to check the patient and it was found that the patient required emergency treatment in view of obstructive uropathy (obstruction to urinary pipe (ureter) due to stuck stone in tube of both Kidneys) serum ceratinine the parameters of Kidney function was deranged scientific way. She underwent Bilateral URI & B/L DJ. He further submitted that stone in both ureters were fragmented & B/L DJ stent was inserted scientifically. Her Kidney function improved after the operation as evident by serum ceratinine decrease postoperative. It is clearly mentioned in prescription slip & notes also that only URS procedure to remove stone in ureter was done by the OP No. 2. He further submitted that if stones have reoccurred in the kidney of the complainant then they cannot be held medical negligent.
11.           Learned counsel for OP No.3 submitted that the complainant herself is liable for the lapses which she has tried to raise in his complaint relating to problem in view of obstructive uropathy (obstruction to urinary pipe (ureter) due to stuck stone in tube of both Kidneys) serum ceratinine the parameters of Kidney function was deranged scientific way. He further submitted that she underwent Bilateral URI & B/L DJ. He further submitted that the stone in both ureters were fragmented & B/L DJ stent was inserted scientifically and her Kidney function improved after the operation as evident by serum ceratinine decrease postoperative. He further submitted that Dr. Virendra Dhankar, Urologist Specialist got Insurance Policy from OP No. 3, which is valid w.e.f. 07.12.2020 to 06.12.2021. He further submitted that Dr. Virendra Dhankar was called by Dr. Sudhir Kapoor/OP No.1 General Surgeon, Kapoor Hospital, Ambala City on Sunday. He further submitted that the patient required emergency treatment in view of obstructive uropaty (obstruction to urinary pipe (ureter) due to stuck stone in tube of both Kidneys) serum ceratinine the parameters of Kidney function & was deranged. He further submitted that the emergency was tackled and it is clearly mentioned in operative notes also that only URS procedure to remove stone in ureter was done by the OP No. 2. He further submitted that she has been discharged from the hospital in a satisfactory conditions and all relevant record has also been handed over to her at the time of her discharge.
12.           The OPs No.1 and 2 have contended that proper URS procedure to remove the stone in the ureter was done and the complainant was discharged in satisfactory condition, thus they cannot be said to be medical negligent. It may be stated here that in the case of K.S. Bhatia Vs. Jeewan Hospital and others; IV (2003) CPJ 9 (NC), the Hon'ble National Commission has held that, "As per settled law on the subject, complainant has to allege which action of the O.Ps. was not as per accepted medical practices. What was done which should not have been done or what was not done, which should have been done. This has to be supported by expert evidence of medical literature on the subject. Nothing on these lines has been done in the case." In the present case also the complainant has not produced any independent medical expert report of a qualified doctor to rebut the contention of the OPs No.1 and 2.
13.           In Sultana Ram Vs. B.K. Chawla (Dr.) and another; III (2006) CPJ 199 (NC), the Hon'ble National Commission observed that  on the basis of expert opinion, that 100% stone clearance was not possible and held that the operating doctor had not made any deficiency in service just because the complainant had to undergo five operations for the removal of stones.
14.           The OP No.2 has also contended that if stones have reoccurred in the kidney of the complainant then he cannot be held medical negligent. We find force in this contention of the OP No.2 because the Hon’ble National Commission, New Delhi in the case of Davinder Kumar Verma Vs. B.M. Lohia (Dr.); III (2008) CPJ 150 (NC),  has held that:- the stones had recurred and the complainant alleged medical negligence on the part of the doctor. The Hon'ble National Commission observed that in 70 - 80% cases, there are chances of the recurrence of stones after the first stone attack and held that there was no negligence on the part of the doctor in performing surgery for removal of stone.
15.           In view of the aforesaid discussion, it is held that the complaint filed by the complainant is devoid of merits; consequently, we dismiss the same. The parties are left bear their own costs. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

 Announced:- 12.02.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President