2 nd Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SCO NO , SECTOR 22-D, CHANDIGARH.

Transcription

1 2 nd Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SCO NO , SECTOR 22-D, CHANDIGARH. First Appeal No.326 of Date of Institution: Date of Decision: Charanjit Kaur, aged 32 years, W/o Sh. Jagtar Singh, R/o Village Thakkarwal, Tehsil & District Ludhiana. Versus..Appellant. 1. Ved Nursing Home, through Dr. Ved Parkash. 2. Ved Nursing Home, through Dr. Ved Parkash, Prop. Premjit Market, Gurdev Nagar, Ludhiana...Respondents. Before:- First Appeal against the order dated of the District Consumer Disputes Redressal Forum, Ludhiana. Sh. Inderjit Kaushik, Presiding Member. Sh. Piare Lal Garg, Member. Present:- For the appellant : Sh. Jaswinder Randhawa, Advocate. For the respondents : Sh. Gaurav Kathuria, Advocate. INDERJIT KAUSHIK, PRESIDING MEMBER:- This order will dispose of two appeals i.e. First Apeal No.326 of 2004 (Charanjit Kaur Vs Ved Nursing Home & Anr.) and First Appeal No.429 of 2004 (Dr. Ved Parkash & Anr. Vs. Charanjit Kaur) as both the appeals are directed against the same impugned order dated passed by the District Consumer Disputes Redressal Forum, Ludhiana (in short District Forum ). The facts are taken from First Appeal No. 326 of 2004 and the parties would be referred by their status in this appeal. 2. In was submitted that the appellant - Smt. Charanjit Kaur (hereafter to be called the complainant ) was married to Sh. Jagtar Singh. She experienced pain in her gall bladder (Pitta) and got herself checked from the respondent Dr. Ved Parkash (in short, respondent no.1) and on his advice, ultrasound of her abdomen was also conducted at Dr. Anupam Scan & X-ray by Dr. Anupam Wats

2 First Appeal No.326 of on In the report, multiple calculi of the size of 3-6mm were reported in the lumen (gall bladder). The complainant was advised to undergo surgery of gall bladder for the removal of the same and she was admitted in respondent no.2- Nursing Home by respondent no.1. Complainant was operated upon by respondent no.1 on Respondent no.1 assured the complainant that she will be relieved of her pain after the operation of gall bladder and all multiple calculi from her lumen, shall be removed. However, respondent no.1 did not conduct the operation properly and is guilty of negligence and carelessness while conducting the operation. Respondent no.1 did not remove all multiple calculi, rather number of pieces of calculi were dropped by respondent no.1 in the body of the complainant and as such, the pain did not subside. 4. On , complainant was advised to take medicine for 5 days and it was assured that after taking the medicine, the pain will subside. But the pain continued and the complainant contacted respondent no.1 on , who changed the medicine, but to no effect. 5. The complainant again approached respondent no.1 on as the pain increased and respondent no.1 re-admitted the complainant on , where she remained till Due to negligence and carelessness committed by respondent no.1 in performing the operation, multiple calculi were dropped in the body of the complainant, which resulted in blockage of T-Tubes and collection of fluid in the liver which caused sever pain. Respondent no.1 used to extract the fluid with the help of syringe and this process continued till , when the complainant was discharged on her request, as respondent no.1 could not give proper and effective medication to the complainant and her condition deteriorated. On seeing un-cooperative and un-sympathetic attitude of respondent no.1, complainant got herself discharged on

3 First Appeal No.326 of Complainant contacted Dr. Batta, who also advised ultrasound of abdomen which was conducted by Dr. Varun Satija on and in the report, the impression was given as follows:- Large encysted right subphrenic fluid collection? Biloma? Abscess. 7. On , the complainant was admitted in DMC & Hospital, Ludhiana, where she was operated upon by Dr. Mohan Gupta, who replaced two T-Tubes in the abdomen which were destroyed due to negligence and carelessness of respondent no.1. Dr. Ajit Sood conducted Endoscopy and 10 (Ten) pieces of calculi were removed from the T-Tubes. Due to carelessness ad negligence on the part of respondent no.1, the complainant had to undergo sever pain and agony from onwards and from to at DMC & Hospital, Ludhiana as well as Deepak Hospital. 8. The complainant did not recover and pain subsisted throughout and on , she again consulted Dr.Ajit Sood and Endoscopy was performed. It was reported that calculi had struck in the T-Tubes and during Endoscopy, 8 to 10 calculies were removed and jaundice was also reported. Serum of the complainant was examined on in which jaundice and blockage of T-Tubes were reported. The complainant was advised bypass survey of T-Tubes which was done by Dr. Arinderm Ghosh of Deepak Hospital, Sarabha Nagar, Ludhiana. The complainant incurred huge expenses i.e. Rs.20,000/- at respondent no.2-nursing Home, Rs.37,000/- at DMC & Hospital, Ludhiana, Rs.1300/- on two ultrasound scans, Rs.20,000/- on medicines, Rs.10,000/- on conveyance and other misc. charges and Rs.42,570/- as medical expenses incurred at Deepak Hospital, Ludhiana. The complainant is still under treatment and she has undergone three major operations, due to negligence of the respondents. There was gross negligence in services on the part of the respondents and the complainant is entitled to recover the amounts above mentioned, spent on her treatment besides Rs.3,00,000/- as compensation along with Rs.20,000/- as legal fee and expenses, in all Rs.4,80,000/- along with 18% p.a.

4 First Appeal No.326 of In reply filed on behalf of the respondents, it was admitted that the complainant was admitted in Ved Nursing Home, having the diseases of chronic cholecystitis and cholelithiasis and was operated upon for removal of gall bladder stones on under proper anesthesia. There was no complication during or after operation and she was discharged as cured on Medicines were prescribed as per normal practice after the operation. It was admitted that the complainant was again admitted in the said nursing home from to for observation. The complainant left the hospital without medical advice. She did not contact the respondents, nor sought the advice. As such, no negligence can be attributed to the respondents. Ultrasound scan was done by Dr. Varun Satija and gall bladder was surgically removed. No fluid was seen in the GB Fossa. CBD was not dilated which shows that the operation was successful and there was no deficiency in providing services. Other allegations were denied and dismissal of the complaint was prayed. 10. Parties led evidence in support of their respective contentions by way of affidavits and documents. 11. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum allowed the complaint and directed the respondents to pay Rs.40,000/- as compensation on account of deficiency in service. 12. Aggrieved by the impugned order dated , the appellant/complainant has come up in appeal for enhancement of the compensation and for payment of medical expenses. Whereas, the respondents have filed First Appeal No.429 of 2004 titled as Dr. Ved Parkash & Anr. Vs. Charanjit Kaur, and prayed that the impugned order dated be set aside and the complaint be dismissed. 13. Learned counsel for the complainant has argued that medical negligence of respondent no.1, is proved but the learned District Forum has not awarded the medical expenses actually spent. Litigation expenses were also not

5 First Appeal No.326 of awarded. The part of the medical expenses has been termed as compensation and the compensation for the pain and sufferings undergone by the complainant, has also not been awarded. 14. On the other hand, it was contended on behalf of the respondents that there is no medical negligence. Proper care and caution was taken and the operation was performed by respondent no.1, who is a experienced doctor and has conducted hundreds of such operations. The complainant of her own left the hospital and the operations were conducted to remove the fluid, whereas respondent no.1 was taking out the fluid through the syringe and the complaint deserves to be dismissed. 15. We have considered the submissions made by the learned counsel for the parties. 16. Admittedly, the complainant approached respondent no.1, when she suffered pain in her gall bladder and respondent no.1 got the ultrasound tests conducted on It was found that there are multiple calculi in the lumen and respondent no.1, in order to remove the said stones, operated the appellant on Even after the operation, the appellant continued suffering pain in her stomach and respondent no.1 advised her to take medicine and when the pain did not subside, the medicine was changed and then again, the appellant was admitted on and remained in the respondent no.2-nursing Home, owned by respondent no.1, till On , she got herself discharged and on the next day, she was admitted in DMC & Hospital, Ludhiana, where she was operated upon by Dr. Mohan Gupta. A large fluid collection was there in between right lateral aspect of the right lobe of liver and the lateral abdominal/chest wall. The T-Tubes were blocked due to some pieces of the stones which still remained in the abdomen due to carelessness and negligence of respondent no.1. Endoscopy was done by Dr. Ajit Sood and 10 pieces of stone were removed which had fallen in the T-Tubes as well as in other parts of the body. The argument that due care and caution was taken by respondent no.1, is

6 First Appeal No.326 of not tenable because had the operation been conducted with requisite care and caution, then all the pieces of stone would have been removed, but large number of pieces which were dropped in the abdomen, itself is sufficient to establish that the care which is expected from a qualified doctor, has not been taken by respondent no.1 while operating the complainant. The respondents have taken the plea that the appellant was discharged after she was completely cured, but this plea is false, in view of document Ex.C2, whereby the complainant was discharged on her own request. On vide Ex.C3, Dr. Varun Satija conducted the ultrasound test of abdomen and large (approximately 300ml) fluid collection in between the right lateral aspect of the right lobe of liver and the lateral abdominal/chest wall, was detected and the following impression was given:- Large encysted right subphrenic fluid collection? Biloma? Abscess. And she was again operated upon in DMC & Hospital, Ludhiana and was discharged on vide Annexure-C4. Endoscopy was also conducted and the report is Annexure-C Respondent no.1 has not taken the requisite care which was required to be taken at the time of operation of the gall bladder and the negligence on the part of respondent no.1 complicated the case of the complainant. The complainant has to undergo the second operation at DMC & Hospital, Ludhiana, as large number of stones fallen in the abdomen, closed the T-Tubes and caused fluid collection and also resulted in puss formation. The treatment which the complainant took from DMC & Hospital, Ludhiana, could have been given by respondent no.1, when the complainant was re-admitted in respondent no.2- Nursing Home from to , but except for giving some medicines, no further investigation was conducted. Respondent no.1 was under obligation and duty bound to find out as to why the pain of the complainant, was not subsiding, despite the operation conducted and other medicines given, but that was not done. Therefore, gross negligence on the part of respondent no.1, is fully

7 First Appeal No.326 of established and there is deficiency of service on the part of the respondents. The complaint is not liable to be dismissed. 18. The learned District Forum has observed in para no.13 that it is proved that the complainant spent Rs.22,000/- for getting the treatment in the hospital of the respondents, Rs.37,000/- were spent in DMC & Hospital, Ludhiana and Rs.1300/- on ultrasound scan, but strangely enough, instead of awarding this amount as medical expenses, awarded the compensation of Rs.40,000/- in lumpsum. This order of the learned District Forum, is required to be modified. Learned District Forum has also not taken into consideration the amount spent in Deepak Hospital, Ludhiana, although, the complainant has placed on file the bills, receipts and other documents of Deepak Hospital, Ludhiana, which are Ex.C53 to Ex.C84. The complainant is entitled to get medical expenses, compensation and the costs of litigation. 19. Accordingly, the appeal filed by the complainant Smt. Charanjit Kaur for enhancement of the amount of compensation, medical expenses etc., is accepted and the respondents no.1 & 2 are directed to pay Rs.22,000/- spent on treatment in respondent no.2-nursing Home owned by respondent no.1, Rs.37,000/- spent in DMC & Hospital, Ludhiana, Rs.1300/- spent on ultrasound scans and Rs.25,000/- spent on medical expenses and the treatment taken from Deepak Hospital, Ludhiana, vide Ex.C53 to Ex.C84. The complainant is entitled to the medical expenses, in all, to the tune of Rs.85,300/- (Eighty Five Thousand Three Hundred). The complainant also suffered pain and mental agony due to negligence of respondent no.1 for which, she is entitled to the compensation to the tune of Rs.20,000/-(Rupees Twenty Thousand) and Rs.5000/- as costs and litigation expenses. As such, respondents no.1 & 2 are directed to pay the total amount of Rs.1,10,300/- (Rupees One Lac Ten Thousand and Three Hundred) to the complainant Smt. Charanjit Kaur, within two months from the receipt of copy of this order.

8 First Appeal No.326 of With these modifications, the present appeal filed by the complainant Smt. Charanjit Kaur, is accepted and consequently, the First Appeal No.429 of 2004 titled as Dr. Ved Parkash & Anr. Vs Smt. Charanjit Kaur, is dismissed. 21. The appellants Dr.Ved Parkash & Anr. of First Appeal No.429 of 2004, had deposited an amount of Rs.20,000/- with this Commission at the time of filing of the said appeal on This amount of Rs.20,000/- with interest accrued, if any, be remitted by the registry to Smt. Charanjit Kaur, respondent/complainant, by way of crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to appellants. 22. Remaining amount shall be paid by the respondents Dr. Ved Parkash & Anr. to the complainant Smt. Charanjit Kaur within two month from the receipt of copy of this order. 23. Arguments in this appeal were heard on and the order was reserved. Now the order be communicated to the parties. 24. The appeal could be decided within the stipulated timeframe due to heavy pendency of Court cases. 25. Copy of this order be placed in First Appeal No.429 of 2004 (Dr. Ved Parkash & Anr. Vs. Charanjit Kaur). (Inderjit Kaushik) Presiding Member September 29, (Gurmeet Singh) (Piare Lal Garg) Member