Haryana

StateCommission

CC/400/2016

RAJ KUMAR - Complainant(s)

Versus

Dr. YASH PAL SINGLA AND OTHERS - Opp.Party(s)

BY POST

28 Apr 2023

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.400 of  2016

Date of the Institution:16.12.2016

Date of Decision:    28.04.2023

 

Raj Kumar S/o Sh.Kartar  Chand, R/o Bhandariya Wali Gali, Model Town, Guruharsahai, Distt. Ferozepur.

                                                                   .….Complainant

Versus

1. Dr. Yashpal Singla of Geetanjali Hospital, 270-N, Model Town, Gurdwara Road, Hisar.
2. Geetanjali Hospital, 270-N, Model Town, Gurdware Road, Hisar through its Manager/Authorized person.
3. United India Insurance Company Ltd. Plot No.4, IInd Floor Opp. PLA shopping Complex, Mall road, Hisar-Haryana 125001, Insurer of Dr.Yashpal Singla through its Manager/Authorised person.
4. The Oriental Insurance Company Ltd. 4E/14, Azad Bhawan, Jhandewalan Ext, New Delhi 110055, Insurer of Geetanjali Hospital, through its Manager/Authorised person.

                                                          .….Opposite Parties

 

CORAM:   Mr.S.P.Sood, Judicial Member

 

Present:-    Mr.Sohrab proxy counsel for Mr.Amandeep Singh Mainiase, Advocate for the complainant.

Mr.Nitin Sood, Advocate for the Opposite Party Nos.1 and 2.

Mr.Ram Avatar, Advocate for the opposite party No.3.

Mr. B.R.Madan, Advocate for the opposite party No.4.

 

O R D E R

S P SOOD, JUDICIAL MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that complainant’s wife Smt.Samita Rani was obese (over weight), due to which she was facing several health problems.  The complainant and his wife contacted OP No.1 and 2 and enquired about the procedure for reduction of bodily weight of Samita Rani in April 2016. On assurance of OP No.1 of no life risk, the complainant opted to go ahead with the surgery as advised by OP and she alongwith her family members approached Dr.Yashpal Singla at Geetanjali Hospital Hisar on 24.06.2016 for bariatric surgery.  Various tests  alongwith USG were conducted before surgery.  As per the reports, Samita Rani was not found to be fit to undergo Gastric Bypass.  The treating doctor advised her that there were minor complications and which could easily be controlled through medication and he will conduct mini gastric bypass on 24.06.2016 and asked her to deposit Rs.1,50,000/- as fee including all expenses. After the operation, she felt uneasiness and severe pain in abdomen which continued till next day but OP No.1 told her to take medicines at home and was discharged on 25.06.2016, however, complainant and his wife were reluctant and replied that until his wife becomes stable and quite well they will not leave the hospital.   However patient continued to experience acute pain in her abdominal region alongwith, high BP and high pulse rate till 27.06.2016.  As per assurance of the OP No.1, she was discharged on 27.06.2016.  On their way back from Hisar to Guruharsahai, she felt uneasy and had fever and even could not pass the urine. The complainant called OP No.1  and asked whether they could come back to Hisar as Samita Rani was not feeling well but OP No.1 replied that they were not required to be back to Hisar and she could be advised or prescribed medicine on telephone which will improve her condition.  However the patient Samita Rani was immediately taken to Aastha Hospital, Guruharsahai for consultation and during the intervening night of 27/28.06.2016 the doctors conducted various tests as asked by OP NO.1 and the reports dated 28.06.2016 revealed that health of Samita Rani was not good and was down with severe infection.   On the next day i.e. 28.06.2016 complainant and his family members again took her to OP No.1 where again several tests were conducts and was found that there was excessive internal bleeding and as a result her haemoglobin level had fallen considerably.  The OP No.1 performed another surgery upon Samita Rani on 29.06.2016.  After the operation, doctor said that there was excessive bleeding due to leakage in the stappling  done after the first surgery which had caused complication, but now  the accumulated blood has been cleaned so Samita Rani will get well soon. The patient was also put on ventilator support on 29.06.2016.  On 29.06.2016 to 02.07.2016 Samita Rani remained in ICU with ventilator. The complainant and his family members were forced to remain at OP No.2 Geetanjali Hospital and upon seeing the deteriorating health, OP No.1 conducted another open surgery upon Samita Rani on 02.07.2016 and after operation he again cleaned the excessive blood. However condition of patient Samita Rani worsened and remained precarious and finally she ultimately died on 05.07.2016 in OP NO.2-Hospital. The leakage of blood or other fluids was a clear indication that the procedure adopted and followed by OPs was not performed correctly. The death of Samita Rani has occurred due to sheer mal practice and negligence of OP Nos.1 and 2.  The deceased was aged 36 years and was a cloth merchant working under the name and style of M/s Kartar Chand & sons” at Guruharsahai and was sole proprietor of this firm, earning more Rs.38,000/- per month besides looking after the family including the complainant and two minor children. The deceased has been income tax assessee and used to submit returns since the year 2014-15 and 2015-16. The complainant spent more than Rs.4,35,000/- on her treatment.  Thus there was deficiency and negligence in service on the part of the OPs.  The complainant prayed that OPs be directed to   pay a sum of Rs.87,10,000/- alongwith interest at the rate of 9% p.a  alongwith litigation etc.

2.      Notice of the complaint was issued against the O.Ps. and filed written statements separately stating that  complaint being bad for non joinder of parties as OP No.1 is insured with United India Insurance Company Ltd and respondent No.2 Geetanjali Hospital with the Oriental Insurance Company Limited. Despite all this these companies have not been joined. It was further alleged that patient had health problems due to morbid obesity eventually worsening drastically affecting her life. The patient discussed about various types of Bariatric surgeries, risks and benefits thereof in detail and specifically opted for mini gastric bypass. The patient was advised to continue their treatment by their physician and was put on a high protein diet.   Patient, Samita Rani aged 36 years was admitted on 24.06.2016 at 11 AM with known case of hypertension, CAD, Dyspnea, OSA, Morbid Obesity weighing 130 kgs, BMI more than 50 with joint pain and was unable to walk.    Before operation, the attendant was counselled ab out the Bariatric surgeries and all its benefits and the risks involved were explained in detail. All investigations related to the surgery were done.   The patient was known case of hypertension, CAD, OSA, Dyspnea with a history of three abdominal surgical interventions earlier. Laparoscopic of Mini gastric bypass and adhesinolysis was done diligently on 24.06.2016 after obtaining the consent. The patient was  hospitalised for three days.  Abdominal drain was removed on the first postoperative day itself as there was no blood from the drain. Postoperative physician reference was done. The patient was discharged on 27.06.2016 in satisfactory condition. The patient’s attendant discussed on the phone in late evening 28.06.2016 and was advised to come for consultation and management. The patient was re-admitted in causality on 29.06.2016. The patient was in shock and kept in ICU on inotropic support.  There was a blood collection in the peritoneal cavity, which was evacuated, no source of bleeding could be found, drains were kept and she was shifted back to ICU on ventilator support.  Postoperative USG of whole abdomen was normal on 30.06.2016. The patient recovered after the first surgery, but again her general condition deteriorated on 01.07.2016.  One more surgery was carried out on 02.07.2017 after getting consent but she died on 05.07.2016. As per literature these surgeries were not without risks, but in her case there were more complications related to these surgeries because of high BMI, changed physiology and underlying Co morbidities and pathology.  Thus there was no deficiency  or any negligency in services on the part of the OPs

3.      OP No.3 filed separate written statement and alleged that OP No.1 was insured with answering OP through its professional indemnity policies with a sum insured of Rs.25,00,000/-. The patient was properly examined investigated, diagnosed and treated  by OP NO.1 who was qualified and experienced in his field as per prescribed norms.  The complaint was not maintainable for mis joinder of proper parties.  If there is error, omission or negligence in professional service on the part of insured respondents only then answering respondent shall decide the claim case of insured respondent as per the terms and conditions of the policy. There was no privity of contract of the complainant with the answering respondent.  Thus there was no deficiency in service on the part of the answering OP.

4.      O.P.No.4 filed its separate written statement.  It was alleged that there was no privity of insurance contract between the complainant and OP No.4  nor with OP No.1 and therefore, the OP No.4 has wrongly been impleaded as a party in the present complaint without disclosing any cause of action.  It was further submitted that the OP NO.4 had issued an insurance policy named as Medical establishment, Error & Omission Insurance  Policy for the period from 31.10.2015 to 30.102016 for an indemnity limit :- (1) (Any one accident limit of Rs.10,00,000/- (Ten lakhs only) and (2) Aggregate during the policy period for Rs.10,00,000/- agreeing thereunder subject to terms, exceptions, conditions  and limitations.  OP No.2 was not guilty of any kind of professional error, omission or negligence in professional service.  It was submitted that medical service rendered by OP NO.2 was not covered under the insurance policy. The condition of the deceased was critical as alleged by complainant and if OP NO.2 has allowed OP NO.1 to perform surgery in such a serious condition then OP NO.2 has violated the terms and conditions of policy which does not cover liability as per exclusion clause 9(x). If the OP NO.2 is found negligent in providing professional service then OP NO.4 can indemnify OP No.2 subject to terms, exceptions conditions and limit of liability. Thus there was no deficiency as well as negligence in service on the part of the answering OP.

3.                When the complaint was posted for recording evidence of the parties, complainant-Raj Kumar and  Mohit Manchanda in their evidence has tendered the affidavit Ex.CA, Ex.CA1 and affidavit of Dr.Hirdai Narayn, MBBS MS Astha Hospital, Faridkot Ex.CB vide which they have reiterated all the averments taken in the complaint and  tendered some documents Ex.C-1 to C-71 and closed their evidence.

4.                On the other hand, in order to rebut the evidence led on behalf of the complainant, O.P. Nos.1 and 2 has also tendered the affidavit of Dr.Yashpal as Ex.R1/A and further tendered the documents Ex. R-1/1 to R-1/10 and affidavit of Dr.Kamal Kishore as Ex.R2/A alongiwth documents Ex.R2/1 to Ex.R2/8  (Ex.R2/8 is the treatment record from page NO.35 to page No.270) and  closed their evidence.

5.                OP NO.3 has also tendered the affidavit of Parveen Gupta,Deputy Manager Ex. RA3 and documents Ex.R-3/1 and closed his evidence.

6.                OP NO.4 has also tendered affidavit of Mr. Balbir Singh, Regional Manager, OIC as Ex.R4/A and document Ex.R4/1 and closed his evidence.

7.                Arguments heard. File perused.

8.                 It is not disputed that Samita Rani-deceased remained admitted in the hospital of OP No.1 and 2 following her bariatric surgery for reduction of obesity in April 2016. It is also not disputed that OP Nos.1 and 2 were also insured with the OP Nos. 3 and 4 respectively.   It is also not disputed that on assurance of OP NO.1, surgery was conducted on 24.06.2016.  It is also not disputed that after  the operation, Samita Rani felt uneasiness and experienced severe pain in her abdomen.  It is also not disputed that after surgery, her pulse rate and BP was on higher side and she had pain in her abdomen right till 27.06.2016 when she was discharged also.  It is also not disputed that when complainant and his family members came back to Hisar with patient, later was not feeling well.   It is also not disputed that Samita Rani died on 05.07.2016 in OP No.2 hospital.

9.  Before  adverting upon to  discuss and arrive at any conclusion whether the concerned doctors who handled this case at various stages were negligent or not, with all the admitted facts acting in the background perhaps it cannot be disputed that like brain surgery this bariatic surgery has also a very low success rate.  Even if this is one of the choice surgical intervention still many surgeons discourage the persons who approached them for the same. In most of the cases of this surgical intervention blood leakage happens to be one of the most common occurring post operative complication as was the case in hand. There was profound leakage of blood from the stappelled area which all got collected in abdominal cavity and resulted into severe pain which when complained was not taken seriously. Somehow or the other when patient came back and was readmitted in the OPs hospital she had to be operated upon again to remove the leaked blood which had got collected and had also go infected also.  But this internal bleeding resulted into dropping of her haemoglobin level. Well even this remedial exercise also did not succeed. Even before going ahead with this surgery in the first go, OP doctors were aware about the co-morbidities the patient was suffering from like hypertension, heart problem, and the likes.  So in such a situation how far was it advisable for the OPs to have decided to go ahead with this surgery.  It is also doubtful whether anything about the possible complications of this surgery was clearly explained to the patient and her family members. Therefore the decision of OPs to operate the patient in those given circumstances was not justified especially  in view of patient facing so many issues on health front.

10.    The OP NO.1 did not perform the surgery properly, thereby causing  leakage of blood etc. which caused infection and hemoperitoneum. As per the record of blood tests reports  available in the file, the tests reports indicated increase in infection and considerable  decrease in Hb level but OP NO.1 failed to diagnose and treat the leakage properly which caused excessive abdominal pain to Samita Rani.  Mr. Raj Kumar has paid  all the bills for treatment of his wife Samita Rani.

11.    It is also a matter of record that  Samita rani was aged 36 years and was running  a business of cloth merchant in the name and style of M/s Kartar Chand and sons” at Guruharsahai and she was the sole proprietor of the firm, earning Rs.38,000/- per month besides looking after the family including two minor children.   To prove the income, the complainant has placed on record income tax return of Samita Rani for the year 2015-2016.

12.    In the considered opinion of this Commission, it was a case of medical negligence in giving treatment to the Samita Rani by the treating doctors  of Geetanjali Hospital if at all, the circumstances as  developed that there was no other option but to stop the leakage of the blood,  it should have been done at the earliest possible by the treating doctors.   But the team of the doctors were found to be indecisive and not in a position to prevent further deterioration of the condition of a patient and allowing the things to become worst due to not taking a prompt decision to conduct the surgery upon Samita Rani. It is nothing but a medical negligence on the part of the treating doctors of OP Geetanjali Hospital.

13.    It is quite pity that due to the medical negligence of the treating doctors of OP NO.1 and 2,  the patient had died at the age of 36 years. Now the question arises as to how difficult, the survival of the dependents members of the family including the children had become in the absence of mother and wife.  Although the loss suffered by complainant and his children is immense and perhaps can never be compensated adequately but just to mitigate his day to day personal expenses and that of his dependents, the amount of the compensation can be just and fair and assessed in the following manner:-

i.        The monthly income of the complainant was Rs.38,000/- and after deduction, the amount of Rs.38,000/- (per month salary) minus 12,667/- (one third deduction)=Rs.25,333/-, the amount of Rs.25,333/- was her per month income and as per prescribed ratio, the yearly income of the complainant comes to Rs.25,333/-x 12=Rs.3,03,996/-, the appropriate multiplier  prescribed for the age ranging between 35 to 40 is 16, the complainant is only entitled to Rs.3,03,996x16=48,63,936/- as amount of compensation.  The OP Nos.1 and 2 are directed to pay Rs.48,63,936/- to the complainant alongwith interest @ 9% p.a. from the date of filing of complaint till realization. If complainant opt any insurance policy in the hospital, the OP  Nos.1 and 2 can indemnify the above said amount through insurer.

ii.       The OP Nos.1 and 2 are directed to pay Rs.1,00,000/- to the complainant on account of loss of consortium.

iii       The OP Nos.1 and 2 are also directed to pay Rs.20,000/- as transport expenses to the complainant.

iv.      The OP Nos.1and 2 are also directed to pay Rs.50,000/- loss and care and guidance for minor children.

v.       The OP Nos.1 and 2 are also directed to pay Rs.4,35,000/- towards medical expenses spent on the treatment to the complainant.

vi.      The OP Nos.1 and 2 also directed to pay Rs.1,00,000/- as compensation to the complainant for pain and suffering.

vii      The OP Nos.1 and 2 are also directed to pay Rs.50,000/- as litigation charges.

In case, there is a breach in making payment within the stipulated period  of  45 days, in that eventuality, the complainant would further be entitled to get the interest @ 12% per annum, for the defaulting period.   It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attractable. 

 

April 28th, 2023                                                     S.P.Sood

                                                                             Judicial Member                                 

S.K.(Pvt.Secy)