DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.220/20
CS Ashok Kumar Mittal
S/o Late Sh. Mahavir Prasad Mittal
28, Third Floor, D Block
Kalkaji, New Delhi-110019. .…Complainant
VERSUS
IBS Hospital
73, Ring Road
Lajpat Nagar-III
New Delhi-110024.
Dr. Abhishek Bansal
IBS Hospital
73, Ring Road
Lajpat Nagar-III
New Delhi-110024. ….Opposite Parties
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Sh. Akshay Mittal, AR for the complainant.
Present: Adv. Kapil Kher for OP.
ORDER
Date of Institution:06.11.2020
Date of Order :22.08.2024
President: Ms. Monika A Srivastava
Complainant has filed the present complaint seeking direction to Delhi Police to lodge FIR against OP-1 and 2; direction to DMC and DGEHS to cancel the licence of OP-1 and 2 and direction National Accreditation Board that OP-1 for suspending the rating of OP-1. Complainant has also prayed that OP-1 be directed to provided expenses of Rs.10,00,000/- borne by complainant No.-1 in relation to the proposed surgery which was cancelled; compensation for deficiency in service, mental harassment and cost of litigation. OP-1 is IBS Hospital and OP-2 is Dr. Abhishek Bansal. Though the son of the complainant has referred himself to as Complainant no.2 but it is clear from the memo of parties that there is only one complainant.
- It is stated that the complainant visited OP-2 i.e. Dr. Abhishek Bansal for pain in his knees and he was diagnosed of rheumatological arthritis. It is stated that the prescription clearly recorded complainant’s medical history as ‘aneurysms in aorta’ with coiling previously done. The prescription is annexed as annexure-1.
- The complainant was then referred to Dr. Salim Naik on 03.02.2020 where also the complainant’s history was recorded.
- Dr. Navin Chobdar was consulted on the advise and call of OP-2 who advised colour Doppler of both knees to the complainant. Prescription of OP-2 is annexed as annexure-2.
- It is stated by the complainant on 22.09.2020 complainant visited OP-2 for a final call on his surgery where OP-2 mentioned CTVS ref. for aneurysms and gave a go ahead for the surgery. The prescription is annexed as annexure-3.
- On 30.09.2020, complainant was finally admitted to OP-1 for surgery which was due on 01.10.2020 and while in OT complainant asked the OP regarding the availability of cardiology intervenes and anaesthesiologist answered it in negative. It is stated that OP-2 tried to convince the complainant and his family for one hour that there will be very little or next to one per cent chance that such a facility would be required by the patient. It is further stated that when son of the complainant sought the meaning of one per cent chance, it was explained that the one per cent chance would be with the patient had to be operated within ten minutes in case such an emergency arises and require a cardiologist facility right next to OT which is only available in big hospitals. Son of the Complainant then questioned OP-2 that why this information was not provided earlier to which it was replied that for this reason ‘high risk consent’ was taken from complainant.
- It is the case of the complainant that this amounts to deficiency in service by the hospital and the son of the complainant got the complainant discharged immediately.
- It is stated that the discharge summary issued by OP-1 mentions postponement of surgery due to unavailability of cardiology intervenes facility. The same is attached as annexure-5.
- It is stated that despite their deficiency in service, OP-1 have taken Rs.11,917/- from the complainants and in total including the prior expenses Rs.30,000/- has been spent by the complainants for the proposed surgery. It is stated that in reply to the legal notice of the complainant, OPs have stated that the complainants may be sued for defamation. It is the case of the complainants that there is clear negligence, harassment, negligence, cheating, criminal breach of trust voluntarily causing grievous hurt, criminal conspiracy and attempt to culpable homicide in addition to deficiency in service by OPs.
- In their reply, OPs have stated that complaint is a gross abuse of process of law and has been filed with sole purpose of harassment and pressuring the OPs to submit to the unreasonable and mischievous demands of the complainants. It is stated that the complaint is devoid of any valid cause of action.
- It is stated that there is no specific, scientific and justified allegation in regard to negligence or deficiency in providing services against the OPs. It is stated that complainants have totally explained to file as to how the OPs were negligent or deficient in providing services. It is stated that complaint is based on non-specific, unscientific and laymen conjectures. In this regard, OPs have placed reliance on the judgment of the Hon’ble Supreme Court in Martin F. D’souza Vs. Mohd. Ishfaq CA No.3541/2002.
- It is stated that as per annexure-3 filed by the complainant, complainant was not given a go ahead for the surgery as submitted by him and OP-2 advised the complainant to be reviewed by gastroenterologist and a Cardio-Vascular-Thoracic Surgeon (CTVS) in view of the pre-existing co-morbidities as reported by the complainant. It is further stated that complainant came back to OP after a gap of 7.5 months and the complainant was again advised for review by the doctors so as not to leave any loophole in the safety of the complainant.
- It is stated that after this review by OPs complainant underwent colour doppler ultra sound of his lower limbs on the advice of CTVS Surgeon outside the hospital premises. Once a normal report of the Doppler was received and reviewed by the CTVS Surgeon along with the a fitness from both the CTVS and Gastro, the complainant was finally admitted for knee replacement surgery on 30.09.2020 after discussing everything with the complainant and his family.
- It is stated that complainant and his family were clearly told about the non-availability of a dedicated CTVS Department in the hospital and the fact that in the opinion of Dr. Navin Chobdar and in view of the normal colour Doppler study of both lower limbs, the need for any CTVS intervention is highly unlikely.
- It is stated that as a routine patient safety protocol set by OP-1, complainant was asked for any concerns or doubts which the complainant might have before the start of procedure of anaesthesia in the presence of anaesthetic doctor and other OT staff. It was at this moment that the complainant expressed his desire to have CTVS surgeon to be standing in the operation theatre all the while he was being operated in view of his history of aneurysms. The procedure was temporarily suspended even at the expense of busy OT time to address the concerns of the complainant. The doctors were made to speak to the complainants’ own doctor relative on phone who gave verbal go ahead for the surgery. All along with son of the complainant was not available for any discussion. Keeping in mind the legalities of OP-1 and 2 decided not to go ahead with the surgery in view of the doubt of the complainant.
- After son of the complainant came he sought an explanation from the OP as to why the complainant was shifted for operation which was duly explained to him that the same was done after discussion with the complainant and the family members present and the fact that the consent form was signed by the complainant and his members which was supposed to be ready before signing.
- Son of the Complainant was also given the option that Dr. Navin Chobdar could be made available as a standby surgeon on the next morning but son of the complainant sought the discharge of complainant therefore, complainant was discharged as per the wish of both the complainant and his son.
- It is stated that OP-1 and the treating doctors followed each and every safety protocol to ensure safe and effective treatment for the complainant. A pre-operative CTVS opinion was sought from a qualified surgeon and his advice was followed. It is further stated that the complainant and his family had signed consent for surgery and yet all safety protocol with a final discussion with the complainant on OT table and his concern was duly addressed.
- It is stated that discharge summary only mentions postponement of surgery and not cancellation of surgery as OP-1 was ready to provide CTVS Surgeon back up on the next day of surgery.
- It is stated that the medicine mentioned by the complainant are routinely used in pre-operative period to prevent infections following totally knee replacement surgery and are a part of pre-operative preparation of the patient as per the patient safety protocol. The medicines were used in the recommended dosage and scheduled on the prescription of qualified doctor.
- It is stated that allegations in the complaint are twisted and written out of context just to make the complainant appear correct.
- In his rejoinder, complainant has objected to the reply of OP-1 as not been filed within time. It is reiterated that negligence on the part of the OPs has clearly arisen and that despite recommendation of cardiologist, doctors at OP-1 went ahead for surgery. Complainant relies on the prescription CW1/3 wherein it is written “planned for admission on 30.09.2020 for surgery on 01.10.2020” whereas Dr. Navin Chobdar, doctor at OP-1 had subsequently written, “if colour Doppler normal then proceed for surgery”.
- It is further reiterated that since colour Doppler test mentions recommendation of OP-2 it cannot be said that the colour Doppler was done at a place of complainants’ own choice. It is further stated that patient having a history of aneurysms required a dedicated CTVS facility. It is stated that a reply is nothing but a false, frivolous and vexatious statement made by OPs.
- Both the parties have filed their respective evidence affidavits as well as written arguments. This Commission has gone through the entire material on record.
It is seen that the complainant was well aware of his condition which is evident both from his complaint as well as documents on record. It is also seen that son of the complainant and the complainant are well informed individuals who also consulted the cardiologist before the surgery and as per the advice of the cardiologist went in for a colour Doppler test. It is clear from the prescription of Dr. Naveen Chobdar that in case the colour Doppler was normal surgery could be done. The complainant was aware that the cardiologist was called on call in the hospital of OP 1. This Commission places reliance on the judgment passed by the the Hon’ble Supreme Court in the matter of SGS India Limited vs Dolphin International AIR 2021 SC 4849 wherein it was held
“The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the Respondent in the complaint.”
It is upon the complainant to initially discharge the onus to prove that there was deficiency in service on the part of OPs. This Commission has gone through the pleadings and documents filed by the complainants and find that complainant has not been able to discharge this onus. Therefore, the present complaint is dismissed being devoid of any merits.
Copy of this order be provided to the parties as per rules. File be consigned to record room. Order be uploaded on the website.
